A Critique of DU Photocopy Judgment – I

photocopy I co-authored an article in Livelaw wherein the Delhi High Court judgment in DU photocopy case was critiqued. I am re-publishing the article in two parts. As a prelude, I would like to make some observations.

I would like to pay tributes to late Justice Antonia Scalia of US Supreme Court whom I consider to be one among the most influential jurists of all time. He passed away on 13 February 2016. As a country with common law tradition, Indian jurists and academicians ought to take up his scholarship on contextualised textualism a lot more seriously especially considering growing calls for judicial restraint. However, a blind comparison cannot be drawn with United States since the ‘circumstantial’ matrixes in both the countries are very different.

It is widely noted that many Indian statutes lack ‘precision’ sufficient enough to preclude mala fide interpretation of a provision. Mr. Arun Jaitley, Senior Counsel, Supreme Court of India and presently, Minister of Finance, Government of India, while speaking at the third annual Convocation of National Law University in August, 2015, voiced similar concerns regarding legislation drafting exercise and stated as follows: “We need a huge manpower in legal academics. When we draft legislations in tune with modern trends, traditional minds are not being able to produce it.” In other words, he effectively summed up the concerns at the highest levels of Government of India. Consider the case of Evidence Act, 1872 which is undoubtedly a ‘beautiful’ work of ‘legal’ art (in spite of its frailties in keeping up with the demands of contemporary times). The Law Commission of India, in its 185th Report, observed as follows: “A review of the law of evidence is, it is acknowledged by one and all, one of the most formidable and challenging tasks for any Commission. The Act was drafted in 1872 by one of the most eminent jurists of the nineteenth century Sir James Stephen. In fact, while dealing with sections 24 to 27 of the Act which are probably some of the crucial sections of the Act and which are applicable to criminal law, Sarkar (Law of Evidence, 15th Ed., 1999, page 534), stated……“No section has perhaps raised so much controversy and doubt as sec. 27 and several judges have recommended the redrafting of sections 24 to 27. That formidable task is not likely to be undertaken in the near future as it would require a jurist of the eminence of Sir James Stephen.”…”

This article critiques the Delhi High Court judgment citing judicial legislation. But I must admit that it can be largely attributed to the lack of ‘precision’ in Copyright Act. Calls for judicial restraint become meaningful only when the statutes have the attribute of ‘precision’. Having set the context, please find below the first part of the article:

                   A critique of Delhi High Court judgment in DU Photocopy case

A lot has been written on the recent Delhi High Court judgment in The Chancellor, Masters & Scholars of the University of Oxford & Ors. V. Rameshwari Photocopy Services & Anr (“DU Photocopy case”). While many hail this judgment for promoting ‘access to education’, we can only respectfully disagree with its legal reasoning, methods of interpretation and the resultant legal outcomes. As to summarise, the Delhi high court held that the making of course packs (compilations of limited excerpts from copyrighted books, put together by faculty members in accordance with a carefully designed syllabus and teaching plan) for the purpose of education was well within the bounds of the law and did not amount to copyright infringement. The lawsuit dated 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 academicians intervened and a vigorous battle ensued in court. Nearly four years later, Justice RS Endlaw held in favour of the defendants and dismissed the lawsuit. The judge opined that Section 52(1)(i) of the Copyright Act (“ (1)The following acts shall not constitute an infringement of copyright, namely:………(i) by a teacher or a pupil in the course of instruction”), which exempted copying for the purpose of educational instruction, was wide enough to cover the acts of the defendants.

We argue that the judgment is jurisprudentially and legally unsound on holding Section 52(1)(i) to be a controlling norm rather than a limited exception. We are of the view that the judgment perilously intruded into the shores of judicial legislation, enervating the foundations of Rule of Law which forms an essential facet of Article 14 of the Constitution.

[Note: For the uninitiated, please read the following write-ups for better understanding – here, here, here, here and here.]

By an act of judicial legislation, the Delhi High Court held Section 52(1)(i) to be a controlling norm and not an exception

All modern copyright systems provide for circumstances in which copyright will not be infringed by the unauthorized reproduction or presentation of a copyright work. Such exceptions represent scenarios in which the legislature has decided to prioritise some other interest over the interests of the copyright owner.

The first approach is to provide a non-exhaustive list of generally worded exceptions. The effect of this approach is such that any use which a court deems to be ‘fair’ will be treated as non-infringing. This is known as the defence of “fair use”. The United States, for example, leans towards this approach.

The second approach, evolved in United Kingdom, includes providing a large number of much more specific exceptions, encompassing carefully defined activities (more of a ‘pigeon-hole’ concept). If the respective use a) falls within the defined exceptions; and b) is fair, then “fair dealing” applies. The copyright laws of Australia, Canada, India, New Zealand, Singapore and South Africa use “fair dealing”. Unlike the related doctrine of “fair use”, “fair dealing” cannot apply to any act which does not fall within one of these categories.

The third approach is to set out certain “enumerated exceptions” without any qualification such as “fairness”. It is more of an unequivocal exception. The fourth approach is to use a hybrid model. Singapore, for instance, uses a hybrid model encompassing “fair dealing” and “fair use”.

It is yet to be settled whether Indian Copyright Act uses the “fair dealing” model or a hybrid form consisting of “fair dealing” and “enumerated exceptions” models. In the context of given fact situation, while Section 52(1)(a) & (b) use the expression “fair dealing”, Section 52(1)(i) does not. Therefore, on literal interpretation, it can be argued that the model is hybrid in nature. On the other hand, it can be argued that “fair dealing” pervades the entire Section 52 and absence of “fair dealing” in Section 52(1)(i) is a case of ‘Casus Omissus’ (i.e casual omission) or that “fair dealing” is implied by application of ‘Noscitur A Sociis’ (i.e to construe words in an Act of Parliament with reference to words found in immediate connection with them).

For Part-II of the critique, click here.


Mathews P. George

Mathews P. George

Mathews is a graduate of National University of Juridical Sciences, Kolkata. His interest in intellectual property was kindled when he bagged the second position in his second year of Law School (in the prestigious Nani Palkhiwala Essay Competition on Intellectual Property). His stint as a student of Prof. Shamnad Basheer further accentuated his interest in intellectual property. Winner of almost a dozen essay competitions in his Law School days, he was involved in various research and policy initiatives relating to intellectual property. Mathews is, currently, based out of Munich, Germany. He had earlier done his LLM in 'IP and Competition Law' from Munich Intellectual Property Law Centre (jointly run by Max Plank Institute for Innovation and Competition, University of Augsburg, Technical University of Munich and George Washington University, Washington).

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