Copyright

A Tantalising Copyright Offer: Lessons from Canada and New Zealand


A highly controversial copyright law-suit filed by leading publishers against Delhi University (DU) and its photocopier for creating and distributing “course packs” spurred a number of articles on this blog, traversing a number of legal issues.  For the latest update on this unfortunate suit, see our post here.
One of the legal issues under discussion is whether or not Universities should obtain a copyright licence from the publishers. In fact, publishers did make this enticing offer in court, arguing that universities should put an end to the dispute by simply taking a license and paying a fixed royalty each year to the IRRO (Indian Reprographic Rights Organisation), a collecting agency that collects on behalf of publishers.
In an earlier post, I strongly contested this alluring offer on the ground that where the law carves out an educational exception from infringement, there is absolutely no need for obtaining a licence for creating course packs which extract and use only limited portions of copyrighted works. Such a licence would tantamount to converting what is a perfectly legitimate copyright exception into a compulsory licensing provision.
I also noted that this tantalizing offer must be resisted at all costs, given that it is nothing short of a licensing trap. The IRRO and publishers are likely to offer a paltry licensing fee at the start, but once they get their foot in the door, there is no stopping them from rapidly escalating licensing fees year after year. This is not a mere figment of my imagination, but has played itself out!
Canadian universities bore the brunt of this copyright greed around a year or so ago and refused to renew their licenses. More recently, Universities in New Zealand are having to face the music and have just been dragged to the copyright tribunal over their refusal to accept a hike in licence fee.
Indian Universities and educational establishments could do well to learn from these comparative examples and resist this beguiling offer to convert what is a clearly articulated copyright exception into a compulsory license. 
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.

4 comments.

  1. Howard Knopf

    All interested parties might wish to read the landmark 2012 ruling of the Supreme Court of Canada (“SCC”) on fair dealing in the educational context. See Province of Alberta v. Access Copyright http://bit.ly/Wf9CWL

    Likewise, see the SCC’s ruling on “reearch” and fair dealing in CCH v. LSUC http://bit.ly/WCoWip

    As well, here are the current fair dealing guidelines from the University of Toronto:http://bit.ly/10r3oTB

    A large number of post-secondary institutions have concluded that there is no need to obtain a license from Access Copyright, the collective that is seeking $45 per student per year in the form of a “tariff” from Canada’s Copyright Board.

    The English speaking school boards in Canada for K-12 have decided to stop paying licence fees to Access Copyright effective January 1, 2013.

    Given the common ancestry of “commonwealth” countries and the cognate nature of the various copyright laws descending from the 1911 UK legislation, these Canadian developments may be of considerable interest.

    HPK

    Reply
  2. Anonymous

    I do not know the extent of the education exception in India, but in New Zealand the exception has a capped quantity. Copying beyond this 3% cap requires a license. Given that the license on offer gives universities 10% or a chapter of each work then the license most certainly has additional commercial value that should be paid for by universities.

    Reply
  3. Amlan Mohanty

    @ Anonymous 8:03

    I would argue that since Indian courts are yet to determine the quantitative limits of these educational exceptions, it would be foolhardy to procure licences on the belief that some commercial benefit would follow, when they could as easily be sought under current exceptions.

    This has been discussed under U.S. jurisprudence on course packs and Michael Geist, a respected copyright scholar in Canada also makes this argument.

    Essentially, the perceived benefits of a compulsory license should not forestall a fair dealing analysis on merits.

    Reply

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