Publishers Support Fair Use. Really?

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In an earlier post, we highlighted a protest letter by academics and authors to leading publishers, Oxford University Press (OUP), Cambridge University Press (CUP) and Taylor & Francis (T&Y) on March 10, 2013. The letter asked that publishers withdraw an egregious copyright lawsuit filed against the Delhi University (DU) and its licensed photocopier for creating and disseminating course packs.
For a quick overview of the case and what it represents, see here.
For a detailed coverage of the lawsuit, click here.
And for a more entertaining audio visual rendition, see here.
To quickly recapitulate, academics and authors came down heavily in support of the right of students and academic institutions to create course packs (for those still not in the know, course packs are compilations of educational materials that correspond to a carefully designed syllabus and contain mere excerpts from different copyrighted works so as to expose students to a wide variety of readings). In their protest letter, academics and authors expressed their anguish at the fact that banning course packs would deny students access to critical educational material and hamper valuable educational goals. Further, such photocopying was clearly covered by the copyright educational exceptions in section 52(1)(a) and section 52(1)(i) of the Indian copyright act.
The letter also rightly rejected the fallacious assumption that a ban on photocopying would necessarily result in increased book sales. It highlighted the fact that in view of the exorbitant prices charged by publishers, students could not afford to buy these text books anyway.
The letter also noted that a large part of academic scholarship that is picked up and published by publishers are subsidized by Universities and financed through public funding. The law suit essentially targets educational establishments that contribute to the very creation of these copyrighted materials!
Through their letter, academics and authors make it abundantly clear that they are dissociating themselves from the law-suit and that publishers were not really speaking in their name.
Publishers’ response 
The UK based publishers lobby, Publishers Association (PA) responded to this protest letter as below:

Through this court case we have sought to challenge the illegal duplication of copyrighted materials for sale by a commercial photocopying shop, not the validity of the “fair dealing” exceptions to the Copyright Act. 

In much the same vein as above, OUP’s India office also wrote to several academics (whose support they sought to solicit) as below:

Through this court case we have sought to challenge the duplication of a wide range of copyrighted materials—including books specifically commissioned and written for course use—for sale by a commercial photocopying shop, not the fair use of the materials by students and teachers. As a scholarly publisher, Oxford University Press not only support fair use, but actively engages in fair use as a matter of standard practice. 

The above emails from publishers suggest that the objection is really against the making of course packs by the photocopier and not against Delhi University itself. Nothing could be further than the truth!
It does not take specialized legal knowledge or a high IQ to appreciate that this unfortunate law-suit also targets Delhi University and all other academic institutions that create course packs for their students.
In fact, publishers agitated for and obtained a separate restraining order against Delhi University. Therefore, to now claim that the law-suit is only against the photocopier and not against DU or any other academic institution is hogwash and nothing short of a blatant misrepresentation!
Fair Use
The letters by OUP to their authors and the publisher lobby suggest that they are ardent supporters of “fair use” by educational institutions.
It is a tad bit strange then that they would file a law-suit where the “taking” from copyrighted works amount to no more than 10% of the total copyrighted work in most instances. We’d already done the mathematics here earlier, a task complicated by the fact that publishers themselves were not very clear on how many pages were photocopied.
In a country such as the US with a significantly enriched student population (when compared with a much poorer India), a court recently held that a 10% taking amounted to “fair use”. Not only does India have a fair dealing provision similar to the US, it also contains a separate educational exception. This makes it amply clear that our scope for creating course packs is much wider than what exists in the US.
If the publishers indeed support fair use and the worlds most IP friendly jurisdiction has pegged this at 10%, why then do they sue in a case where the majority of the takings are under 10%? The logic of the law suit confounds against this alleged evangelism in favour of fair use.
Misleading Statements by IRRO 
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The response also makes clear that this law-suit was filed primarily to kickstart and fill the coffers of the IRRO, an organization that has thus far been unable to stake out a viable business model in India. The response from the publisher lobby notes:

For those looking to create coursepacks, the Indian Reprographic Rights Organization (IRRO) offers a legitimate and accessible method for securing permissions, and offers copyright tariffs which are amongst the lowest in the world—as little as 50 paise per page. It is possible for educational institutions to produce coursepacks which are accessible and affordable; ensuring seamless access to copyrighted works for our students to further their studies. 

For its part, the IRRO (Indian Reprographic Rights Organization) has also been doing a song and dance about how course packs are illegal. Even as the suit is pending and the legality of course packs are being agitated before the court, the IRRO issues a press release on March 18, 2013, stating that “any institution/organization/individual and other who are photocopying, scanning or digitally reproducing copyrighted material require to ensure legal compliance.”
The IRRO letter also goes on to castigate DU stating that the “Delhi University has neither taken any license nor has informed photocopy shops at its premises about the IRRO licenses. It is the duty of Delhi University to properly inform their academicians, authors, students, etc. about the legal way of taking a license for photocopying. It is also its duty to try to stop confusion about the photocopying among the various users.”
This is nothing short of a pernicious attempt to coerce academic institutions into taking licenses, when the law provides for a clear exception.
The IRRO needs to appreciate that all photocopying is not illegal. If this were the case, then there would be no point in having a section 52 which carves out specific exceptions in favour of users/beneficiaries.
This blatant mischaracterization of the scope of the law by the IRRO caused the academic representatives (Prof Menon, Baskar, Sundar and Basheer) to respond as under:
1. Firstly, the creation and distribution of course packs is not in contravention of Indian copyright law as your letter implies. May we please refer you to the following provisions:  
i) Section 52(1)(a) of the Indian copyright act exempts from infringement any “fair dealing” with a copyrighted work for the purpose of research.  
ii) Section 52 (1) (i) is a separate exception from the one above and exempts from infringement any use of a copyrighted work for the purpose of educational instruction.  
Contrary to the suggestion in your letter, the educational use exception under section 52(1) (i) is not qualified by any “fair dealing” or “fair use” restriction. In other words, any dealing with a copyrighted work for the purpose of educational instruction is exempted from the scope of copyright infringement.  
2. Even in countries such as the United States that contain only a “fair use” provision and not a separate “educational instruction” exception, courts have held that a 10% taking in most cases constitutes fair use. We believe that by specifically elucidating an educational instruction exception, Indian law is far wider in scope than US law and permits a greater range of takings from copyrighted works. In any case, the vast majority of the takings complained of in the law-suit filed by you amount to no more than 10% of the copyrighted works in question. 
Outsourcing Photocopying? 
The response from academics to the publisher lobby letter also makes clear that a University right to photocopy for creating course packs would also include the right to outsource such photocopying to a third party photocopy, under strict licensing terms. The response notes:

As you can appreciate, the photocopier in this case is not a stand-alone commercial photocopier, but an agent of the University acting under a specific licence from it, which sets out various terms including the fee to be charged for the creation and dissemination of course packs. All these documents are on record in the case filed by you and you no doubt have access to them. You will appreciate that a vast majority of Indian universities and educational institutions are resource strapped and may not have an adequate number of photocopy machines to cater to all students and faculty. Even otherwise, faculty and students may not have the time to do the actual photocopying themselves. Therefore, academic institutions ought to have the liberty to contract with agents to do this for and on their behalf. 

(By Shamnad Basheer & Sai Vinod)
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3 thoughts on “Publishers Support Fair Use. Really?”

  1. Teachers should protest strongly against this action motivated by greed. They should file petition in court to have the suit dismissed because they may also be stopped by these publishers tomorrow from making copies. They will have a very good case.

  2. The “fair dealing” provisions in the Copyright Act permit, inter alia, copying for purposes of “private or personal use, including research” (Sec. 52(1)(a). It is permissible for students to make their own copies within the limits of fair dealing. But the issue in this case is that DU is making the copies for distribution, not the students themselves; this (copying for circulation) is not what the statute envisages as “fair dealing”. Whatever one’s opinion about the broader question, it is important that the law should be stated correctly.
    As to educational need, my generation used to sit in libraries and take our own notes from books–a very good way of assimilating their content. I appreciate that times and needs have changed, but do not believe that the future of education hangs on the right to copy.
    Jagdish Sagar

  3. Dear Mr Sagar:

    When you say the law must be stated correctly, you assume that the law has already been decisively interpreted. It has not!

    In fact, a recent US decision (Georgia Tech) exempted 10% takings for the purpose of creating course packs when the takings were done by the University/faculty. Further, in a landmark decision, the Canadian Supreme Court (Alberta) held that fair dealing for the purpose of research can be availed of by both a student as also the teacher.

    Secondly, you must appreciate that the 52(1)(i) exception, dealing with any taking of copyrighted work by teacher or student in the course of instruction also comes into play here. In fact, we’re planning to rely more on this clear defence, which has no “fair dealing” limit.

    Good to hear that you were an avid note taker and had access to your library. And more importantly, that your library had enough copies to enable other note takers to gain adequate access. Sadly the plight of many other less well off libraries are not as rosy. More worryingly, plenty of our students do not live close enough to libraries to sit up after class hours and take notes. For all these reasons, we argue that the 52 defences ought to be interpreted broadly.

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