Our readers will remember our homegrown version of the David and Goliath story: the case filed in 2012 by various publishers (OUP, CUP etc) against Rameshwari Photocopy Services, a small photocopy shop which had a license from Delhi University to make coursepacks for the students of the university. The suit filed by the publishers rightly caught the attention of authors, lawyers, academics and the public alike- the decision in the matter would have great ramification on the cost of and consequently, access to education in this country, like no other. While we at SpicyIP have often bemoaned the delay in the judgment in the last few years (for background reading, all our previous posts regarding this matter are available here), we are delighted with the decision of Justice Endlaw, which unambiguously protects coursepacks made by education institutions from the gauntlet of infringement.
The decision which runs into a whopping 94 pages clearly lists out the arguments of the plaintiffs( the publishers), the first defendant (Rameshwari), the second defendant (Delhi University) and the impleaded parties (ASEAK and SPEAK). In this post however, I will be limiting myself to those arguments that the Court has engaged with. (For those interested in a summary post with key highlights, Prof. Shamnad Basheer’s post is available here)
The suit was filed before the Delhi High Court in 2012. In September 2012, an order directing DU to examine the proposal of the plaintiffs that they obtain a license from Reprographic Rights Organisation such as IRRO for preparing course packs was passed. In October 2012, Rameshwari was restrained by the order of the Court from making or selling course packs until final disposal of the application for interim relief.
The subject matter of the September 2012 order was one of the first issues considered by the Court when it had determined the relevant question, ie, whether the making of course packs by the first and second defendants amounted to infringement of copyright of the plaintiffs. The Court clearly stated that it agreed with the submission of the defendants that the question of taking such a license only arises if the Court comes to the conclusion that the making of course packs is not covered under Section 52 of the Copyright Act and therefore, constitutes infringement. Therefore, the Court rightly recognized that it was absolutely unnecessary for the defendants to negotiate any license from copyright societies for making course packs if the law provides the defendants with the right to do so.
The Court recognized that copyright is a statutory right and according to the provisions of the copyright act, photocopying original literary work is an exclusive right of the owner of the copyright and that the making of photocopies by DU would constitute infringement under Section 51 unless such act is listed under Section 52 of the Copyright Act. The Court also noted the differences between the DU library issuing copies of the book to the public and DU making photocopies of the work. Regarding the former, the Court stated that this would be permissible as it would be a direct application of the principle of exhaustion which is the genesis of libraries, educational institutions as well as the business of resale of books. With respect to the latter, the Court stated that the phrase “ to issue copies of the work to the public” under Section 14 (a) (ii) cannot be interpreted as “making copies of the work”. Therefore, the Court stated “The defendant No.2 University thus, though entitled to issue the books, published by the plaintiffs and purchased by it and kept by the defendant No.2 University in its library, to whosoever is entitled to issuance of the said books from the library, per Section 14(a)(i) and Section 51(a)(i) would not be entitled to make photocopies of substantial part of the said book for distribution to the students and if does the same, would be committing infringement of the copyright therein.”.
The Court then moved on to the interpretation of Section 52 of the Copyright Act, which forms the pivotal part of the decision. Section 52 lists out certain acts that are not to be considered as infringement of copyright. The Court accepted the contention of DU that the acts under Section 52 are not to viewed as a proviso or exception to Section 51. The Court stated that, “Similarly here, to hold that inspite of the legislature having declared the actions listed in Section 52 to be not amounting to infringement, the same have to be viewed putting on the blinkers of being infringement would amount to holding that the Copyright Act which allows actions listed in Section 52 to be done without the same constituting infringement and consequences thereof not constituting infringing copy, cannot be done to the extent permitted by the language of Section 52. I thus agree with the contention of the senior counsel for the defendant no.2 University that the rights of persons mentioned in Section 52 are to be interpreted following the same rules as the rights of a copyright owner and are not to be read narrowly or strictly or so as not to reduce the ambit of Section 51, as is the rule of interpretation of statutes in relation to provisos or exceptions.” Then the Court considered whether the making of course packs falls under one of the sub-sections of Section 52. While the Court noted that the same would not fall under Section 52(1)(h) or 52(1)(j), it would fall under Section 52(1)(i).
Section 52(1)(i) states that the reproduction of a work by a “teacher/ pupil in the course of instruction” would not constitute infringement. The question before the court was whether the interpretation of this section was restricted to an individual teacher and an individual pupil or whether it would extend to an institution and its students. The Court unequivocally held that it cannot be so restricted especially when considering the societal realities. Education in India has for long been institutionalized and therefore, the law cannot and should not be interpreted in such a fashion that it does not reflect the realities of our education system. The second main contention was with respect to the interpretation of the term “course of instruction”. The plaintiffs contented that this term must be limited to lectures and tutorials, where the teacher is directly interacting with the pupils and in doing so, is using the copyrighted work. The Court did not accept this contention and held that the legislature specifically chose to use the word instruction rather than lecture, and therefore, the interpretation of the term “instruction” cannot be limited to that of lecture. The Court then attempted to determine when the imparting of instruction begins and ends in a university. To this effect, the Court examined various judicial interpretations of the phrases “instruction” as well as “in the course of” and came to the following conclusion:
“Applying the tests as aforesaid laid down by the Courts of (i) integral part of continuous flow; (ii) connected relation; (iii) incidental; (iv) causal relationship; (v) during (in the course of time, as time goes by); (vi) while doing; (vii) continuous progress from one point to the next in time and space; and, (viii) in the path in which anything moves, it has to be held that the words ―in the course of instruction‖ within the meaning of Section 52(1)(i) supra would include reproduction of any work while the process of imparting instruction by the teacher and receiving instruction by the pupil continues i.e. during the entire academic session for which the pupil is under the tutelage of the teacher and that imparting and receiving of instruction is not limited to personal interface between teacher and pupil but is a process commencing from the teacher readying herself/himself for imparting instruction, setting syllabus, prescribing text books, readings and ensuring, whether by interface in classroom/tutorials or otherwise by holding tests from time to time or clarifying doubts of students, that the pupil stands instructed in what he/she has approached the teacher to learn. Similarly the words ―in the course of instruction‖, even if the word ―instruction‖ have to be given the same meaning as ‗lecture‘, have to include within their ambit the prescription of syllabus the preparation of which both the teacher and the pupil are required to do before the lecture and the studies which the pupils are to do post lecture and so that the teachers can reproduce the work as part of the question and the pupils can answer the questions by reproducing the work, in an examination. Resultantly, reproduction of any copyrighted work by the teacher for the purpose of imparting instruction to the pupil as prescribed in the syllabus during the academic year would be within the meaning of Section 52 (1)(i) of the Act.”
The Court approached this issue from a different angle as well. The Court noted that a student issuing a book from the DU library and copying the same, whether by hand or by photocopying for her private or personal use would be protected under fair dealing. Therefore, it was absurd to state that if the Delhi University did the exact same act as a direct result of its resource constraints, then the action of DU would constitute infringement and not be protected under fair dealing. Hence, the Court stated, “When the effect of the action is the same, the difference in the mode of action cannot make a difference so as to make one an offence.” Similarly, the Court also noted that if a student took photographs of pages of a textbook from the DU library on his cellphone and then proceeded to print the same, that would be protected under fair dealing as it is merely an advancement in technology of copying by hand or photocopying.
The Court held that it was irrelevant whether DU was making the course packs by itself or had licensed it to a contractor. As long as the impugned act was protected under Section 52, it was irrelevant whose hands did the photocopying and the making of the coursepacks, whether it is individual students, the educational institutions or a licensee such as Rameshwari. Moreover, the Court stated that Rameshwari was not a competitor of the plaintiffs, as they were only making compilations of small portions of prescribed textbooks for the students. If Rameshwari was not permitted to do so, the consequence would not be that the students would buy the textbooks. Instead it would be that the students would have to resort to sitting in the library and copying out the pages by hand. This is particularly likely as education in DU is heavily subsidized, thereby enabling students from low-income families to also attend the university. Therefore, the Court stated that it was unfair to expect students to eschew the comfort provided by modern technology and to regress to the studying practices of an ancient era. Additionally, the Court held that “No law can be interpreted so as to result in any regression of the evolvement of the human being for the better.”
The Delhi High Court also clearly explained the nature of copyright thus: “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.”
Hence, in a major victory to access to education, the Delhi High Court ruled through a judgment, which clearly recognized the socio-economic realities of India, that the actions of the defendant did not amount to infringement, that no trial was required and that suit was dismissed.
Image from here