Copyright

Cropping Copyright: Education is not an Exception!


exception-rule

Since the passing of the landmark DU copyright verdict, much ink has been spilt…on myriad opinions and news reports. As with any other pathbreaking order, the decision met with both bouquets and brickbats. In fact, we had two sets of views on this blog alone. While both Gopika and me hailed the decision, Prashant Reddy railed against it.

For other wonderful opinion pieces on this issue, see Lawrence liangs’ take here (Hindu) and here (Kafila). And Alok Kumar in this Scroll piece.

Paradigm Change: Education is not an Exception!

I’ve also done a short take in this DNA editorial reflecting on the paradigm change unleashed by this decision. Arguing that it effectively resuscitates “education” and “access to knowledge” from a mere “exception” to the main/controlling norm. What bearing this has on future disputes, only time will tell. But our good judge (Justice Endlaw: god bless his soul) has effectively engineered a paradigm shift of profound proportions, making it more than clear that educational access is not to be treated as a mere exception!

From Intellectual Property Rights (IPR) to Regulation of Distinctive Information (RDI)?

I argue that with this new frame, we come close to interrogating the very term “intellectual property”. What is so “intellectual” about it, I ask (and use the monkey selfie case to illustrate my point). And how it can be labelled it as property, when it is hardly similar to real property? Rather, shouldn’t it be reviewed as just another regulatory instrument? To regulate what I prefer to call a species of “distinctive information”. In the context of copyright, that “distinctive information” would be  “original” expression that is protected in limited ways. Similarly, with  patents, it would be “new, non obvious and useful” ideas; and with trademarks it would be signage that distinguishes goods/services from those of another. I therefore argue that its high time we relabel “Intellectual Property” as the “Regulation of Distinctive Information” (RDI). For that is what it really is!

Full Text Copying: “Reasonable Nexus” Test?

Lastly, many have been concerned that the decision opens the floodgates to full text copying. I point out that that the judge did not specifically rule on this issue, since on the facts, there was no full text copying. As for the alleged threat that full text copying would become rampant in the immediate aftermath of this decision and kill the publishing industry altogether, I argue that a “reasonable nexus” test for section 52(1) (i) will guard against such an overreach, ensuring that the exception only protects the making of copies to further a legitimate social need: namely educational  access to often prohibitively expensive content.

Academic Publishing vs Regular Publishing

Besides, what many miss is that this decision pertains to “educational publishing”, an ecosystem that operates very differently from regular publishing. For one, it comprises academics (for the most part) who are employees of educational institutions (many of them publicly funded) and who are more than happy to have a wide educational exception; indeed as our previous posts showed, authors of the very same books that had been allegedly copied by DU signed up in large numbers to protest this law suit. Secondly, the case really involves students that would/could never really buy these expensive tomes and do not constitute the publisher market (in any meaningful sense) and other academics who review manuscripts etc for free!

If publishers need to recoup investments and this kind of limited educational copying harms them, that policy case needs to be empirically validated. Till date, it hasn’t! If anything, consider this: photocopying has always been rampant in India—the DU case was the first such case filed in 2012 and an injunction procured. How is it that the academic publishing business grew in India over these past years despite such photocopying? One hopes that this decision forces a serious interrogation of the so called “investment” claims and who really stands to benefit from stronger protection and how the spoils are split. And also the extent to which legal norms ought to facilitate the newer models such as open access publishing etc, rather than sticking with a 16th century stationers’ script!

IRRO Option:

As for the IRRO option, it’s an awfully dangerous route to even suggest! We’d already blogged on this issue in previous posts here and here.

Counsels on the Case:

Lastly, in an earlier post, owing to paucity of time, I had omitted to mention the full panoply of wonderful defence lawyers who worked hard to secure this important public victory. I’ve now amended that post to reflect this, But here goes again:

DU was represented by Saurabh Banerjee, led by senior counsel, Gopal Subramanium. The photocopy shop was represented by Saurabh Seth, led by Rajesh Yadav. As some of you know, a group of us academics (drawn from the law and social sciences) intervened in this DU copyright matter as SPEAK (Society for the Promotion of Educational Access and Knowledge). Our counsel was Swathi Sukumar, led by the wonderful Neeraj Kishen Kaul, a leading senior counsel. Similarly a number of students (led by the wonderful Apoorva Gautam) had formed an association called ASEAK and their counsel was Jawahar Raja.

I also want to point to the stellar role of a large number of students and researchers who helped with this, and in particular Sai Vinod (now a public spirited lawyer at the Delhi high court), Amlan Mohanty (now a public policy lawyer with a leading law and policy firm in Delhi ), and a number of my students from NUJS (sadly, I no longer teach there).

And now, for those interested, here is the full text of the DNA opinion piece.

CROPPING COPYRIGHT
SHAMNAD BASHEER | Thu, 22 Sep 2016-03:13pm , dna

 

“In a momentous decision, the Delhi high court has ruled that the making of course packs for the purpose of study was well within the bounds of the law and did not amount to copyright infringement. The lawsuit dates back to 2012 when leading publishers such as Oxford University Press (OUP) and Cambridge University Press (CUP) sued Delhi University and its authorised photocopier for copyrights infringement of their various publications and procured a temporary restraining order against them. Thereafter, a group of students and academics intervened and a vigorous battle ensued in court. Nearly four years later, Justice RS Endlaw came down on the side of the defendants and dismissed the lawsuit outright. The judge opined that section 52(1)(i) of the Copyright Act which exempted copying for the purpose of educational instruction was wide enough to cover the acts of the defendants.

Coming at a time when intellectual property rights are driven more by lobbies and less by logic, this decision is a landmark. One that cements India’s reputation as a country that refuses to hitch itself to a global IP paradigm, propounded in large part to propel the industrial interests of western economies. And one that recognises that educational access is the norm, and copyright the exception!

Indeed, as the judge rightly notes: copyrights are not “divine”, but purely man-made artefacts. A quick sojourn through history teaches us that its genesis as a formal legal instrument owed itself to extensive lobbying by printers who convinced the English queen to grant them monopoly. The rights of authors came much later; almost as an after-thought, struck up to garnish copyrights with a sweet romantic appeal. This appeal continues to dominate the narrative today, despite the fact that authors are often at the receiving end of the bargain, earning much less from their creative wares than those that package it for them (namely publishers). This was a point that was poignantly made by many of us to the court; not just as a theoretical surmise, but backed by a signed document from a number of authors whose works were allegedly copied in the creation of the DU course-packs. They decried the lawsuit and declared that they were happy for students to photocopy their works, given that students were anyway never the main “market” for these expensive tomes.

There is some concern with the alleged breadth of the decision in that one might argue that it legitimises the reproduction of the entirety of a book. Two points bear noting here. For one, there was no instance of full text copying in the specific set of facts before the judge; rather only excerpts of books were reproduced and compiled into creative course packs designed by the university. Indeed, as was demonstrated during the course of arguments by many of us (as defendants), most of the alleged copying involved no more than 10 per cent of a copyrighted book. Secondly, the plain language of the statute (section 52(1)(i)) does not lend itself immediately to any qualification (in terms of the quantum of copy-able content). As such, the judge may not have thought it fit to draw out a distinction between full text copying and the more limited course-pack copying. However, in order to quell concerns on this count, here is a tentative suggestion: The applicability of the educational defence under section 52(1) (i) could be made to turn upon a “reasonable nexus” test: Is the nexus between copying and the furtherance of educational instruction a reasonable one? Put another way, how necessary is it to copy the copyrighted work for the purpose of educational instruction? If the full text is necessary reading for the course in question and such text is not available at a reasonable price to students, then making copies ought to be permissible under the exception. In this regard, it bears noting that the defendants cited empirical research to demonstrate that the latest editions of a number of leading text books were simply not available in India and had to be imported at considerable cost.

In many ways, this law suit was really about kick-starting the fortunes of the IRRO (Indian Reprographic Rights Organisation), a collecting society of sorts. Publishers argued that universities could easily procure photocopy licences from the IRRO at allegedly “cheap” rates. However, the judge rightly rubbished this argument, noting that a license was not required when the law itself carved out a defence from infringement. Falling into the IRRO trap was a dangerous one, and defendants demonstrated to the court that collecting societies abroad had sharply hiked their licensing fees over the years, causing Canadian universities to walk out of these arrangements. Worse still, music-collecting societies in India had a notorious history of alleged extortion, and are currently being investigated by the government.

While lawyers will continue to split hairs on the details of this decision, there is no gainsaying the fact that it signals a profound shift in our copyright paradigm. For the judge has effectively provoked a progressive frame, where copyright is seen as the exception and access to knowledge the norm. As such, the various defences under section 52 (including education) are not mere exceptions, but broad-based user rights, which, when invoked, militate against the very notion of “infringement” itself.

Telling enough, the judge comes close to busting the “property” rhetoric that has plagued the IPR narrative for far too long; and consigned copyrights to their proper place as mere regulatory tools, meant to balance the private incentives of creators against the larger interests of the public in accessing knowledge and improving on it. This decision comes close on the heels of another copyright controversy involving a monkey selfie, with PETA arguing that the simian ought to own copyright in its image. If the mere click by a monkey is sufficient to crown the image with copyright, should we be really calling this “intellectual” property?

The time is now ripe to discard this false terminology. I propose that we relabel “intellectual property” (IP) as the “Regulation of Distinctive Information” (RDI); for that is what they really are. Not necessarily intellectual, and certainly not property. But a species of distinctive information that must be regulated in the larger interests of society. A regulation that demands that access to knowledge be the norm. And copyright the mere exception!

The author is the Founder of SpicyIP and was part of SPEAK (Society for Promotion of Educational Access and Knowledge), a group of academics who had intervened in this dispute as defendants.”

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.

3 comments.

  1. AvatarHarshavardhan Ganesan

    Hello Professor! Thank you for your erudite piece which certainly placates some of the concerns I had with an otherwise tremendous judgement. I would however dispute your contention that the judge didn’t deal with full text copying, as the facts of the case do not deal with it, since the judgement itself notes that The Court Commissioner had reported that “8 books were found being photocopied cover to cover”. Now, certainly these numbers must be put into proportion, but I do think that the affable judge missed a step when he refused to possibly address a reasonable nexus test, or perhaps admonish DU for allowing such full fledged copying. It might have helped mollify the seething publisher/pro-copyright believers.

    Reply
    1. Shamnad BasheerShamnad Basheer Post author

      Dear Harsha:

      Good question. Fortunately for many of us, the photocopier immediately conceded the point about full text copies and said explicitly in court that this was not authorised by DU. And DU also distanced itself from this full text copying. So this was never really in issue. The judge also makes a note of this in his decision, making it clear that he was only considering the legality of course packs:
      “The only question to be adjudicated thus is, whether the making of course-packs as the defendant No.2 University is making, amounts to infringement of copyright. The said question, according to me, is a question of law and requires no trial. As would be evident from above, we have before us the range of percentage of the contents from each book being photocopied and included in the course pack. No evidence to that effect is required. If the actions of the defendant No.2 University, on an interpretation of law, are held to be infringement, a decree for permanent injunction has to follow. Conversely if the actions of defendant No.2 University are not found to be amounting to infringement of copyright, the suit fails. ”

      But you’re right: that some portions of the decision and even arguments raised might go to full text copying. Hopefully a future decision will take this on directly and deal with it. And one hopes at that stage, that full text copying will also be held to be permissible in those circumstances where the text is essential for the course of instruction and not readily available/accessible in India (the reasonable nexus test).

      Reply
  2. AvatarRaghav

    Dear Basheer,
    What i best like about the article is the bursting of property rhetoric. As you have rightly pointed out there is hype about intlellectual property. This abnormal focus is not good for the society. The judgement is brilliant, we need more judges and thinking like that of justice endlaw

    Reply

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