Gautam Bhatia, who blogs over at the Indian Constitutional Law Philosophy blog recently wrote an interesting piece for the Outlook where he talks about a case that we have covered ever so passionately on the blog – The Delhi University Photocopying case. In this post I want to try and reflect on the happenings of the case, and perhaps raise some questions of my own. (Long post to follow)
For the uninitiated, this was a suit brought by a consortium of publishers against a small, found-at-every-street-corner photocopying shop – The Rameshwari Photocopying Services for copyright infringement. Rameshwari was in the business of creating course packs for students that contained some photocopied extracts from books of these publishers – with varying quanta of material. This according to the publishers was an act of infringement.
What the fight is really about
In his piece Gautam points to the powers that really drive this legal battle. On the one hand we have Rameshwari, which is but a token that represents the culture of copying prevalent across the country. It is this culture that students rely upon to gain access to invaluable academic material that is otherwise unavailable to them or too expensive for them to afford. Prominent examples of these would be legal treatises, humanities text books and the like, the cost of which often run into thousands of rupees per copy (see this article written by Lawrence Liang). These expenses by some stretches of imagination would perhaps be affordable to the city dwelling, well to do students who are bank rolled by their parents, but there is a large section of India and in fact the developing world, where this is not the case (I mention city dwelling here because this is also a question of access as much as it is a question of affordability). On the other hand, we have the large publishing houses that publish these books. Their claim is that copying of this magnitude, and the commercial sale of these course packs would amount to infringement and if this practice were to continue would drastically affect the sales of their books in India, as students would then resort to purchasing these photocopies and course packs rather than the original books instead. They seek therefore to get a declaration from the court outlawing this practice or at best, setting very restrictive limits on it.
On the role of academia
On the principle layer of this debate, the publishers argue a very common line that is often used to justify restrictive interpretations of IP Rights – the promotion of intellectual endeavour. They argue that the royalties that academics receive from book sales would serve as an incentive for them to continue writing. Gautam however writes that there has been immense support from academics and the media to Rameshwari’s side of the case as they believe that a majority of the profits from their intellectual endeavours are gobbled up by the publishers and that they are offered pittance in the form of royalties. Therefore the real incentive for most of these academics would not be the royalties that they receive. The publishers simply do not represent the interests of the authors. Most academics are engaged in funded Universities that pay them to carry out research on their field of study, which then materialise into books. Considering that most of the investment in the research part is borne by sources other than the publishers, and considering that they bear very nominal costs other than royalties there is no justification for the prices that they charge, which more often than not point to astronomical margins.
Why then do academics prefer publishing houses? The answer to that question is rooted in the way academia works and as to how merit is judged in the academic circles – by publications and book deals. The larger the views and citations on a piece of academic writing, the more credit it grants the author. Gautam writes that this is perhaps the reason that young academics are unable to break out of this stranglehold. I wonder however, what the impediment on the older and more established academics is, to try out an Open Publishing Model which puts their content online under a creative commons license so that their work is available freely to the public – comments are welcome.
On the limits of fair use
The photocopying shop with the aid of SPEAK, an academic association argues that the practice of making course packs that are a part of the prescribed reading material for the students falls under the exceptions contained in S.52 of the Indian Copyright Act (particularly S.52(1)(i)) and is fair dealing in the work. The counter argument then was that it becomes a question of quantum – how much copying is considered fair? Gautam mentions that there was a recent American decision that sets this limit at 10% of a book – which is the precedent that the publishers seem to be relying upon. On the other hand is the argument that there is no such maximum limit that is agreed upon across jurisdictions and even if there was, Rameshwari was not in violation of it. Canada for instance (in the SCC decision of Alberta (Education) v. Access Copyright) does not specify a limit and looks instead at the character of use and then makes a determination on a holistic basis.
During the case there was also a brief fiasco involving the IRRO, which offered to license the photocopying of books by libraries and the students. They however made the claim that even if the library were to copy the most restrictive 10% of a book, they were to obtain a license from them at a cost (read Prashant’s take on this here). Before that controversy could be laid to rest however, the IRRO was refused its registration.
With regards to the judicial history of the case, the Delhi High Court had granted a temporary injunction against Rameshwari restraining them from selling the (allegedly) infringing course-packs until the case was decided. This still remains in force though.
While this case quite obviously has the potential to immensely affect publishing of books, it also will affect other areas quite close to publishing – like the indexing of academic articles for instance. Indexing platforms like Hein and Westlaw protect their content by means of thick credit card walls (although JStor still has a commendable trial access feature). This content is often granted to them by journals that are run and funded by Universities, with little or no royalty being granted by these indexing services. The rationale is something similar, these indexing services help young academics with a larger number of views and citations because they are often the first stop for researchers. However, this severely impedes access behind smoke screens of copyright and technology restrictions.
The philosophical implications of this case are also worth considering. Gautam points out in his article that a new corpus of work (academic, artistic or literary) is often begotten from an older generation of work and seeks to improve upon this older generation of work. If this work is locked up under copyright protection, the ideas of creativity and innovation need to be drastically redefined. There is also the question as to how much responsibility publishers as private entities must bear in defraying the cost to educate India’s poor. Some even liken this to how a poor man is not entitled to steal despite however needy he may be. The counter argument to this is that the only reason that the content is inaccessible is due to the actions of the publishers themselves in charging exorbitant amounts for little or no value addition on their part. Somewhat like walking into someone’s house and taking something that belongs to them and then charging them in order to return it.
Whatever the outcome of this case, the take home from this is that a copyright system affects a large number of people, sometimes negatively. However, this does not mean that the system itself needs reconsideration. The late Aaron Swartz, the leading advocate of the Access to Knowledge movement once said, “I’m not against copyright, I’m against dumb copyright.” This case is a call to advocate a reasonable use of the copyright system that benefits mankind and to weed out dumb copyright.