Copyright

Counterview: The outcome of the DU photocopy case isn’t necessarily good news for higher academia in India


photocopierAt the very outset let me congratulate Shamnad, Swathi Sukumar and the entire team who won against the publishers in the DU photocopy case that was decided on September 16, 2016. I do not agree with the outcome but who doesn’t like a good copyright fight!

It’s a tough job to provide a counterview to a post by Gopika, more so since I heard that she won 11 (E-l-e-v-e-n) gold medals while graduating from NLSIU a couple of weeks ago. Thus, I’m going to split my argument into two posts. I’ll deal with the interpretation of the fair dealings provisions in the judgment in the second post. In this post, I want to provide a perspective of why academics publish with publishers like Oxford University Press (OUP) or Cambridge University Press (CUP) although royalties may be rather low.

It’s important to understand this aspect of publishing in order to understand why copyright protection is required and to the degree it can be diluted through fair dealing exceptions. I’m also going to be using this opportunity to shamelessly plug in a forthcoming book that I’ve co-authored with former Spicy IP blogger, Sumathi Chandrashekharan on the history and politics of certain aspects of Indian intellectual property law since independence. It’s not exactly an academic book as we’ve written it for a non-specialist audience but I think it will be interesting to narrate our experience of working with a publisher like Oxford University Press (OUP) in order to explain the important role played by publishers in publishing and disseminating scholarship.

As first-time authors, we kept three factors in mind which deciding on publishers: editorial quality, distribution network and goodwill of the publisher in the market.

Editorial quality, includes important aspects such as peer review, editing the manuscript and having internal quality checks. While the former doesn’t necessarily involve costs on part of the publisher, the more reputable publishers are able to attract better reviewers. Peer reviewers who conduct blind reviews can give valuable feedback and as I’ve come to learn with this book, such feedback is very useful. Quality editing, of course requires quality editors and having worked with OUP India’s editors over the last few month I can safely vouch for their excellence. Suffice it to say that they’ve saved us from some potentially embarrassing blushes. Such editing is very, very time consuming and requires a staff which can pay outstanding attention to detail. To me, these editorial services provided by publishers are incredibly valuable and I can imagine it costs a pretty penny to hire good editors.

Moving on to the publisher’s distribution network and goodwill – libraries, academia and even the common man will usually buy a book depending on the author but there is no denying that the reputation of the publisher plays a significant role in influencing the final choice. In a way both publishers and authors ride off each other’s goodwill – for first time authors like me with no reputation to speak off, there is no doubt that I want to be associated with a publisher like OUP because a OUP stamp on my scholarship will contribute to “CV value” and increase the chances of libraries, academia and readers buying the book and more importantly citing the book in future scholarship. Similarly, the publisher’s distribution network can significantly impact the availability of a book. Publishing with international publishers like OUP or CUP gives authors access to a worldwide market – for Indian academics trying to get global exposure, it helps if OUP can market your books to both foreign and Indian libraries with equal ease.

Everything that I mentioned above requires capital and investment by the publisher. They also have to assume the risk that the book may completely tank in the market and not sell even the first print run. Copyright law is meant to protect this investment and reward the risk assumed by the publisher, along with protecting the author’s own effort in writing the book. Along the way, if the publisher makes money, it wouldn’t hurt for the author to receive some royalties. From what I hear, in the context of law and the liberal arts, the royalties involved are quite low and hardly ever the primary incentive to write a book. The reason for this being that the Indian market for academic books is rather small for a country of a billion people – a standard print run for academic books in law and the liberal arts sphere is between 700 to 1000 books and only a few of these books will have a second or third print run. This is not necessarily a comment on the quality of scholarship but rather a comment on the market for scholarship in India.

One way to boost revenues for publishers and royalties for authors is by monetising unauthorised photocopying. Most people are under the impression that publishers wanted to completely outlaw photocopying through this lawsuit and force students to buy entire books for a single chapter. That’s not entirely true – the publishers clearly wanted photocopying of entire books to end but regarding course packs the strategy was never to force students to buy entire books just for one chapter – that would have been stupid. Rather the strategy was to monetise on photocopying for course-packs by having universities or photocopy shops purchase licences whereby publishers would be paid every time a course-pack was sold.

The initial prices proposed by the publishers was 50 paise per page – a fair bargain given that the photocopier was charging 50 paise to make a photocopy. This is a system which exists across the world – every university in the West pays publishers for issuing course packs to students. Of course, some amount of unauthorised photocopying by individual students and faculty does take place even in western universities but fair use protects some amount of photocopying – systemic and institutionalised photocopying by the target market cannot be considered fair use. Given the sheer scale of unauthorised photocopying in Indian universities, publishers and by implications authors would have gained significantly if it was possible to monetise this practice.

I’m not going to end this piece with doomsday predictions about the publishing industry coming to an end because of this judgment. Academic printing presses like OUP and CUP will continue to publish Indian scholarship but don’t expect them to invest more resources and capital in areas like the social sciences where the market is relatively small, with low returns, not only because of a general neglect of these subjects in Indian universities but also because of unauthorised photocopying. Don’t expect industry to invest more resources when court sanctioned photocopying makes it difficult for the publisher to recover costs, forget making profits. Resources will be diverted to those desks which can generate more returns for the publishers. Lesser investment means lower or static productivity. In simple English that means fewer books and lesser competition, none of which is good news for higher academia in areas like social sciences and law, both of which require more Indian scholarship.

In the next post, I hope to discuss the law on the fair dealing issue. Until then, happy Monday!

Prashant Reddy

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP). He has recently been appointed as an Assistant Professor at NALSAR, Hyderabad, starting September 1, 2017.

5 comments.

  1. Adv. Anil Kulkarni

    Prashant, I tend to agree with you that such liberal interpretation of fair use in education is not correct. With due respect to HC, what the photocopier of DU was doing cannot be scrambled into blanket of fair dealing. In fact DU is vritually publishing entire new book cobbled from various academic publications. And DU agent is definately doing this for price including his profit albeit it may be marginal due to volume of copies. In such circumstances to say that it’s fair use in education appears to be misconceived. I agree with you that the right of the publishers to get some royalty may be exemplary should have been recognised in correct interpretation of Copyright Act. By this judgement now a free licence has been given to educatial institutions to reprogram any material under fair dealing exception. I await your second part of the blog

    Reply
  2. bPk

    #Withduerespect, I am intrigued by your stances and approach!!

    On one hand, you believe that a publisher has made considerable “capital and investment” and that “Copyright law is meant to protect this investment and reward the risk” and therefore course packs ought not be allowed, even after there being a fair use provision. (I am intentionally not going opining upon the correctness or my views of the Judgment though)

    At the same time, and with almost equal logic, though on a completely opposite tangent, you ‘try to’ ignore the capital expenditure by Patentees and even bigger investments made by them in R&D and consider that the ‘innovative and visionary’ middle path of depositing interim royalties, ’till the disposition of the infringement suits’ are completely wrong and have no basis in law and there is no need of protection to the Plaintiffs, and that too for a reason that there exists a (however remote) chance that the Patents in suit might be revoked.

    However (commenting on the other post where you critiqued the middle path approached hailed by our foreign guests) you comfortably forget to assume that in case the Patents are held to be valid and infringed and in such case, lets assume that there exists a possibility that a Defendant Company, on being awarded with a huge sum as royalty payments and it might just shut down, close the shop and forced to run away due to the huge payments that may be involved as per the Court directions. In such case, the Plaintiff will be left with no choice but to take home just a favorable judgment home and probably nothing else.

    In my view (again apologies for commenting on the wrong post, you may provide a link to this comment there), the middle path or interim deposits help both the Plaintiff and Defendant in the following manner:
    For Plaintiff-
    1. Provides guarantee and comfort that there are some royalties in an escrow account or with them against the Bank Guarantee
    2. Provides a sort of surety and economic feasibility for continuing such arduous litigation
    3. Guarantees effective participation of the Defendant in the litigation, if it chooses to not shut the shop and remain business
    For Defendant:
    1. Helps plan its budget and run its operations
    2. A one time royalty payment, which may be an accrued amount of several years may lead to a severe economic constraints and may lead to disheveling of the company’s finances

    I am sure there are several arguments against even the above logic that I trued to provide, like Defendants may budget out the royalties in their own account and need not deposit with Court or that if the Plaintiff may ask the Court to direct attachment of properties and other such measures in case the defaulting Defendant is not able to pay (leading to another string of litigation ad tougher than getting orders from Court for the Banks to transfer the interim deposits) and so on. However, we have to just remember that the ultimate goal of the Judiciary is to achieve ‘balance of convenience’ and not just pacify one of the parties more than the other.

    Hope it addresses some of your concerns.

    Again, I like your posts and #NoOffences to your views.

    And apologies for commenting on a different topic, somewhat unrelated to this post.

    Cheers!

    Reply
  3. Prashant ReddyPrashant Reddy

    Hi BPK,

    Thank you for your comment.

    I never said that Ericsson shouldn’t get damages if it could prove its case in court. But for that to happen the court has to atleast conduct a trial and assess evidence. How is it legal or just for a court to essentially grant damages even before conducting a trial? Why was the court in a hurry? None of the companies involved in this litigation are fly-by-night operators. All of them are big companies. Even if they were fly by night operators, no court of law should deprive a defendant of its property without following the procedure established under the law.

    Regards,
    Prashant

    Reply
  4. bPk

    Yes and No.

    What you have to see here is that its better for Defendants to deposit than to have an interim injunction against them and cease to do business completely. In the present situation, most of the monies are still with Court and its not exactly damages and the term interim damages is wrong usage, since its just interim payments as security deposits.

    Secondly, the fly-by-night operator argument may not stand in this industry, especially when we see that a Telecom Giant as large as Nokia had to shut its shops (qua Mobile Handset business). Also, most of these companies are indeed not having any R&D or manufacturing units in India and therefore, I would not be surprised if any Judge in-fact considers them as a business, capable of being shut down within short period for having no or few substantial assets (apart from offices, staff and not factories or manufacturing units, just like most of Start-ups).

    I am sure the above statement of mine can upset many of such business owners but we have to see that such orders of middle path are actually paragon examples of maintaining equity.

    Again, with due respect.

    Best!

    p.s. I forgot to add that I have previously worked for Patentee Companies and currently pursuing my Masters. I have no vested interest in these cases and at the same time I am not biased towards Innovator Companies.
    Rather I strongly detest if a Patentee tends to abuse its powers, more than I dislike exploitation of hard work and innovation by frivolous infringers.

    Reply

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