Copyright

Academics "Speak" Out in Coursepack Copyright Case


In another significant milestone in the unfortunate copyright case filed by leading publishers against Delhi University, the court permitted SPEAK, an association of academics and authors to intervene.
For a background to this dispute, see all our posts here.  For a condensed version of this law suit and what it represents, see here. For the latest post linking to a letter by academics calling on the publishers’ bluff that they support fair use and that the law suit only targets photocopiers’, see here.

SPEAK (“Society for Promoting Educational Access and Knowledge”) was formed primarily to:

i) To encourage equitable access to knowledge through various means.  
ii) To oppose any attempt to restrict access to knowledge and to safeguard the interests of the universities and students in particular.  
The SPEAK petition requests for an impleadment on the ground that the law suit filed by the publishers effectively targets all educational institutions that create and distribute course packs. It notes:
“Although the prayers seek an injunctive relief against specific defendants, the plaintiffs have advocated an over-expansive interpretation of infringement and completely ignored the provisions of section 52 of the Copyright Act, which provides for a robust educational and a fair dealing exception. In effect, the suit seeks a declaration on the law as applicable not only to the present set of Defendants, but potentially applicable to all Universities and educational institutions across India, their faculty and students.”
For those interested, key arguments advanced by SPEAK in its impleadment application are mentioned at the end of this post. The Delhi Court permitted this application some days ago and a copy of the order is here.  
SPEAK is represented by Swathi Sukumar, an IP counsel and director of i-Probono and Mr Chander Uday Singh, a senior counsel. It must be noted that publishers’ counsel did not object to this intervention and we thank them for the same.
Remembering Student Days (Purani Jeans….)
 
A  couple of weeks earlier, the court permitted ASEAK, an association of students to intervene. This order of impleadment was challenged by publishers before a division bench of the Delhi High Court. The Delhi high court refused to entertain the appeal with the judge apparently quipping to counsel: ‘I hope you remember your student days”.  
A telling remark indeed and kudos to our judiciary for emphatically foregrounding the interests of students in yet another sordid dispute that pits the private against the public. In a similar dispute involving Novartis’ patented drug Glivec, the Supreme Court repeatedly emphasized the public interest in ensuring affordable access to medication.
One hopes that as the matter progresses, courts remain mindful of the public interest component, particularly since any additional barrier to educational access will only serve to deepen existing inequities.
For those interested, I’m listing out the key arguments (verbatim) advanced by SPEAK in its impleadment application before the court:   
Course Packs and Minimal Copying
 
Course packs do not blindly replicate the entirety of the plaintiff’s publications, but are based on a prescribed University syllabus and are intelligently designed by faculty members to expose students to a wide variety of readings on the subject matter under study. As such, they include only extracted portions drawn from a diversity of journals and books.
 
It is pertinent to note that in the present law suit, all the alleged instances of copying pertain to the creation of course packs, containing only small extracts from the Plaintiffs copyrighted works. The cited instances of alleged copying involve no more than 10% of the entirety of the copyrighted work in most cases. Even in developed countries such as the United States, courts have recognized that photocopying of copyrighted material up to 10 % is “fair use” and therefore not a copyright infringement. A true copy of excerpts from the decision in Cambridge University Press v. Becker, 2012 U.S. Dist. Lexis 78123 is filed herewith. 
It is pertinent to note that the United States contains only a “fair use” or fair dealing provision and not a separate “educational instruction” exception. By specifically elucidating an educational instruction exception, Indian law is far wider in scope than US law and ought to permit a greater range of takings from copyrighted works.
Excessive Costs of Copyrighted Text Books
 
Given the excessive costs of the Plaintiffs copyrighted books and the fact that often times, the latest edition is not available for sale in India, a large majority of Indian students will be unable to afford these expensive publications. One of the members of the proposed Defendant society is a co-author of a report that empirically documents the fact that the latest editions of several legal and social science titles were only available to students in India at a price equivalent to that prevalent in the West.
Course packs clearly expand the market for the copyright owner. The moment a faculty member extracts portions from a book to create a course pack for teaching and research purposes, the book becomes popular and its market expands almost immediately. In fact, the very same students who access the readings through course packs initially are likely to become purchasers of the book at a later point in time when they are gainfully employed. Prescribing the works as part of the syllabus not only confers a premium on these works but also introduces the entire student population to these works, thereby expanding the market for the plaintiffs’ works among the non-student populace, whose numbers the students will join on completing their course of instruction with the University.
Based on all the above, the Proposed Defendant will seek to establish that the acts of the Defendants do not in fact interfere with the market for the Plaintiffs’ publications. If at all anything, it expands the market for the works.
In the Name of the Author?
 
It is important to note that many of the authors, whose works the plaintiffs claim copyright in, are salaried full time faculty members of reputed educational establishments. Given that the creation of text books in their relevant areas of expertise promotes valuable educational goals, it will be a travesty of justice if access to those very same text books are now impeded owing to purely private commercial considerations, at the behest of publishers. Further, many of the institutions at which the authors’ are employed are public funded institutions, where their salary effectively comes out of tax payer money, raising serious issues about access to educational works created using public funds.
A number of leading academic authors have objected to the present law-suit by book publishers (to whom copyrights have been purportedly assigned or licensed, as per the plaint) and have supported the right of educational institutions/their students and their agents to create and disseminate educational/instructional material based on their copyrighted works. A collection of their statements expressing outrage at the present lawsuit is filed in the present proceedings.
To allow the plaintiffs to commercially exploit the labour of salaried academics, and to reap the benefits of having their works prescribed as part of the syllabus, while simultaneously restricting the right of the University to make available copies in the course of instruction will do serious injustice to the balance in the Copyright Act between the rights of owners of copyright and the right of the Applicants and students to access educational/instructional material.
Whither the Constitutions’ Promise of A Right to Education?
 
Granting the prayers in the suit will unfairly narrow the scope of the exception under section 52 of the Copyright Act, 1957 to the serious prejudice of the right of the applicants to access knowledge, impart education and course material that is part of their syllabus. The Proposed Defendant takes strong exception to this attempt to whittle down the copyright exception and sabotage the constitutional guarantee under Article 14 and Article 21 of the Constitution of India to secure for all students the fundamental right to access education and educational resources. If the reliefs as prayed for by the Plaintiffs are granted and the compilation and distribution of course packs prevented, then students unable to afford books that are exorbitantly priced will be strongly discriminated against, when compared with students that have the financial resources to access them.
 
Outsourcing Photocopying
 
The alleged copying has been done by a photocopier who is expressly licensed as an agent of the University to do that which the University is entitled to under the Copyright Act. The terms of the licence are clearly laid out, including the fee to be charged for such course packs. A number of Indian Universities and academic institutions do not have the necessary resources to install an adequate amount of photocopiers to satisfy the requirements of all faculty, students and staff. Further, faculty and students may not have the time to engage with photocopying course packs. Therefore, it is only reasonable to outsource this function to a third party through a specific arrangement that sets out the terms and conditions for creating course packs.

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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