Counterview – The DU Photocopy case – How wide should educational use exceptions be in the age of photocopier machines?

Continuing from my last post on the role of publishers and the need to protect their copyrights, I will discuss Justice Endlaw’s judgment in the DU photocopy case, which he delivered 664 days after reserving the judgment. (Warning: Long post!)

“Copyright is not an inevitable, divine or natural right”

Image from here.
Image from here.

I would like to begin with a discussion on the most quoted lines from his judgment:

“Copyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public.”

These conclusions of Justice Endlaw go to the core of his judgment and it is necessary to unpack these conclusions in order to understand the rest of the judgment. To begin with I think it’s necessary to point out that these sentences have a certain context because they are borrowed from American jurisprudence on copyright law. The first two sentences in the paragraph are from a Harvard Law Review article by Judge Leval discussing the contours of the fair use exception in American copyright law. The next two sentences are from an American Supreme Court decision. Both sentences reflect the position of several judges and scholars in the US who do not consider copyright to be a natural right.

For the benefit of our non-law readers, the natural rights theory supports the view that every human is born with some god given or natural rights, which precede even the formation of the state. These rights include the right to speech, right to life, right to liberty and the right to estate and are generally understood as being an end in themselves i.e. they do not have to be justified as a means to attain a larger social objective. From a jurisprudential viewpoint any right grounded in the natural rights theory is very strong because such rights are essentially political and a matter of faith. They do not required to be justified as serving the larger good. Further since such rights predate the formation of the state, they can neither be amended nor revoked by the state.

We’ve often seen this debate in India, when the Supreme Court and Parliament in the sixties and seventies tussled over whether Parliament had the right to curb fundamental rights, most of which are natural rights.

Natural rights have however been subject to harsh criticism by thinkers like Bentham who claim the only rights that man has are those vested in him by the law and that the law should always act in the best interests of the majority. This is the doctrine of utilitarianism. It goes without saying that the natural rights v. utilitarianism debate is much more complex than the few lines that I’ve mentioned above. In the context of copyright law it is an even more complex debate. If we perceive the rights of the authors from a natural rights perspective, any limitations and exceptions should be read narrowly. A utilitarian framework leaves more space for a flexible understanding of limitations and exceptions. In the context of IP there is an interesting ongoing debate in the US between scholars. While some like Prof. Merges, in his book Justifying IP, defend IP as a natural right others like Prof. Mark Lemely have opposed such a justification of IP, arguing instead that IP needs to respond to empirical evidence. Swaraj had a great post on this issue over here.

On which side of the debate is Indian copyright law? That’s a tough question. India is a signatory to the Universal Declaration of Human Rights, 1948. Although this charter was of course agreed upon by states at the United Nations, the language used in the charter, especially the phrases “inherent”, “inalienable” give it a strong natural rights tilt. Article 27 of this Declaration states “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” In the larger context you could argue that the UDHR considers copyright as a natural right and since India is a signatory to the UDHR, it too considers copyright as a natural right.

If you look at the Copyright Act itself, you will see that there is no registration requirement in Indian copyright law – a copyright is therefore created soon as an author fixes an expression on a medium like paper. No state sanction or recognition is required for the copyright to be enforced. In other words it could be argued that the state is merely recognising the natural right of authors to protect their copyright.

At the same time, there are also copyright judgments of the Supreme Court which go both ways. In the ENIL case, Justice Sinha had pointed out to the utilitarian framework of the act when he said: “the Act provides for exclusive rights in favour of owners of the copyright, there are provisions where it has been recognized that public has also substantial interest in the availability of the works”. On the other hand Justice Chinnappa Reddy in the Gramophone case had this to say about copyrights: “An artistic, literary or musical work is the brain-child of its author, the fruit of his labour, and, so, considered to be his property. So highly is it prized by all civilised nations that it is thought worthy of protection by national laws and international Conventions relating to Copyright.” This statement has a very “Lockean”, natural rights tilt.

The long and short of my rambling above is that, there is hardly a consensus on whether copyright in India is a natural right or not. It would have therefore been nice if Justice Endlaw could have provide a more reasoned conclusion to those lines rather than simply borrow sentences from American copyright jurisprudence especially when that country has for long been considered an outlier to international copyright law for several decades.

The fair dealing exception in Indian copyright law: A blanket exception for educational uses in the age of the photocopying machine?

At the heart of this dispute between publishers and authors is Section 52(1)(i) which exempts the reproduction of any work by a teacher or pupil in course of instruction or as part of the questions to be answered in an examination or in answers to such question. As Gopika explains in her post, Justice Endlaw interpreted Section 52(1)(i) as covering all photocopying of all copyrighted works that can be used for educational purposes. In particular, his interpretation of the phrase “in the course of instruction” is particularly wide. He also concludes that the Berne Convention and TRIPS gave India the flexibility to include such an exception in its law.

Image from here
Image from here

There is a very interesting history to educational use exceptions in Indian copyright law. Sumathi and I cover this history in significant detail in one of the chapters of our forthcoming book. While I can’t reproduce the entire history over here, let me provide you with the short version. In 1955 when the Copyright Bill, 1955 was introduced in Parliament, it had proposed some radical reform to Indian copyright law including the shortening of the copyright term from life of author plus 50 years to life of authors plus 25 years. It also proposed introducing a registration requirement for copyrights. Both requirements went against the letter and spirit of the Berne Convention and in our book we surmise that India was prepping to quit the Berne Convention and join the UCC, which was a convention led by the Americans, who were not a part of the Berne Convention. Both of the radical reforms mentioned above had to be dropped after fierce opposition from authors, especially those in Parliament. The educational use exception in Section 52(1)(i) remained undisturbed most probably because at the time photocopier machines did not exist in Indian libraries.

A decade after the Copyright Act, 1957 was enacted India literally, and perhaps for the only time in its history, shook the foundations of international copyright law when it led a successful effort to reform the Berne Convention during the 1967 revision conference at Stockholm. One of the main demands of the Indian delegation at the time was to incorporate wide ranging exceptions into Berne Convention including a right to use copyrighted content for educational use without the need to compensate the author. Although this demand didn’t get through, it was agreed that developing countries could issue compulsory licences for educational purposes and that copyright owners would be entitled to “just compensation”. These and other reforms were introduced in the nature of a Protocol to the Berne Convention which could be invoked by developing countries. The main text of the Convention was also amended to introduce the three-step test in Article 9. This test allows countries to allow for the unauthorised reproduction of a copyright work “provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.” The final text of the Protocol can be accessed on the KEI website here and the Berne Convention itself can be accessed here.

Image from here
Image from here

These revisions were possibly accepted by developed countries because it was quite clear that developing countries led by India would simply walk away from the Berne Convention – remember this was from that lovely era before IP got linked to trading privilege as a part of the WTO agenda. The British however bided their time and four years later in 1971 at the Paris revision conference, the developed countries dumped the Stockholm Protocol and replaced it with an Appendix to the Convention. This Appendix allowed developing countries to incorporate into their national law compulsory licences of such mind boggling complexity that I doubt if they have ever been used by any developing country. This system of compulsory licensing laid down in the Berne Convention was introduced in Sections 32, 32A and 32B of the Copyright Act in 1983.

Now, I’m not sure whether this history was discussed before Justice Endlaw but I think it is an important discussion that goes to the heart of educational use exceptions in Indian copyright law. Let me now explain the implications of this history on the scope of Section 52(1)(i) of the Copyright Act.

As originally enacted, in an era that predated photocopiers, it is possible that Section 52(1)(i) could be read as widely as argued by Justice Endlaw but a lot happened since 1957. Technology developed and photocopying became more affordable. Both the Berne Convention and the Indian Copyright Act were amended in 1983 to include broad (and complicated) compulsory licensing provisions to deal with the problem of access of works for educational purposes. If Section 52(1)(i) is read broadly, it renders the 1983 amendments completely otiose and the presumption in law is that every provision of a statute is meant to have some purpose in law. The only way to balance Section 52(1)(i) with the 1983 amendments is to give the former a more balanced interpretation whereby a certain percentage of a copyrighted work can be used without payment to the copyright owner.

Image from here
Image from here

A discussion of the history of Indian and international copyright law is also necessary to explain the problems with Justice Endlaw’s holding that the three-step test gives India the flexibility to entirely exempt works from copyright protection. In pertinent part he states:

“The international covenants aforesaid thus left it to the wisdom of the legislators of the member / privy countries to decide what is “justified for the purpose” and what would “unreasonably prejudice the legitimate interest of the author”. Our legislators, while carrying out the amendments to the Copyright Act are deemed to have kept the said international covenants in mind.”

First, let it be noted that India in 1967 proposed a blanket exemption for educational uses in 1967 – that proposal was not accepted at Stockholm, instead it was decided a just compensation was payable.

Second, the three-step test in Article 9 also requires that unauthorised “reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.” This principle is broadly in consonance with the aims and objectives of the Copyright Act. It would take a stretch of imagination to argue that the wholesale photocopying of academic books by academic institutions would not affect the publishers of academic books. Justice Endlaw does not explain how authors and publishers would be protected if academic institutions could photocopy all academic books without any limit.

Image from here
Image from here

In my opinion, Section 52(1)(i) should therefore have been reconciled with the three-step test in Article 9 to allow for only such fair use which would not conflict with the normal exploitation of the work and unreasonably prejudice the legitimate interests of the authors. It’s a well accepted proposition of law that courts should try their best to harmoniously reconcile national and international law to mitigate any conflict. Justice Endlaw could have achieved this goal by interpreting Section 52(1)(i) to draw some bright lines allowing for unauthorised photocopying in certain circumstances and not in all circumstances. If educational institutions were still finding it difficult to access academic books there is always the option of seeking compulsory licenses.

The concerns regarding pricing and cost of accessing copyright works would have been taken care under the publisher’s licensing scheme where they would have charged students 50 paise per page of a course-pack with the photocopier getting another 50 paise. In my book that’s a fair bargain.

* My apologies for the multiple photocopier jokes – I had to hold myself back from including another dozen – the internet is hilarious.

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