A Critique of DU Photocopy Judgment – II

xerox_stand_in_mumbai-carouselThe Delhi High Court judgment, unfortunately, doesn’t appreciate the aforesaid jurisprudential nuances. Practically speaking, the Delhi High Court judgment, though technically confined to the territorial limits of Delhi, has weakened the publishers in any future bargain. It doesn’t treat Section 52(1)(i) as a limited exception but as a determining, controlling norm in the name of ‘access to education’. As to the extent it treats Section 52(1)(i) as a controlling norm, it has gone beyond the existing jurisprudence on exceptions to copyright infringement.

If Indian model is held to be a pure “fair dealing” model, then “fairness” does matter and therefore, extent of copying and number of copies made do matter. It may be argued that Section 52(1)(i), which is expressly not qualified by “fair dealing”, is an absolute exception and therefore, a controlling norm. Accordingly, extent of copying and number of copies made are irrelevant. This interpretation strikes at the root of privileges conferred by copyright especially considering the niche market and target audience of each genre of books. As to illustrate, consider a zoologist ‘X’. He writes a book, targeted at undergraduate zoology students of ‘Z’ university of a particular state. The book is simple, lucid and caters to the syllabus of ‘Z’ university. As evident from the illustration, this book is aimed only at the academic market offered by ‘Z’ university. If Delhi High Court judgment is to apply, the book may at best be bought by the libraries and the students can simply use the course packs. The general public has no reason to buy it. The copyright, which X enjoys, simply becomes redundant as the avenue to monetise the copyright is drastically limited. If the publisher has pan-India presence, economies of scale may partly or wholly address the shortfall in revenue. In case of grass root publishers / authors (especially of regional languages) who have access to smaller markets, the relevance of copyright itself may get negated. This possible scenario points at one of the unintended consequences of Delhi High Court judgment viz., stifling creativity and scholarship at grass root levels and disincentivising medium and small scale publishers. An absolute exception vitiates the mischief rule of interpretation i.e the very mischief the Copyright Act intends to address and purposive rule of interpretation i.e giving effect to the twin purposes of promotion and protection of creativity and is therefore, legally untenable.[1]

As to break down the approach of the Court, the judgment indirectly used ‘contemporanea expositio’  i.e giving effect to the original intention when the provision was enacted. This is a highly criticised approach as law is considered to be organic and ever-growing. For instance, logic and prudence demand that the expression “family” in a 1900’s enactment is to be given a more dynamic interpretation when compared to the understanding of “family” in 1900’s. As Prashant rightly observed, photocopying was not in vogue when Section 52(1)(i) was enacted. Therefore, even if absolute exception was the original intention , considering the possibility of making massive number of copies by photocopying and making copyright itself redundant and irrelevant, it defies logic to give effect to the aforesaid intention in 21st century. We are certain that even the late Justice Antonia Scalia of US Supreme Court, who is considered to be the torch bearer of textualism, would not agree to absolute exception as it can negate the relevance of copyright itself (as in the above illustration). He was not a blind textualist but a firm practitioner of contextualised textualism.

Even though ‘access to education’ is a value close to our hearts, unfortunately, we are inclined to state that the judgment flouts Rule of Law. It is not a case of (sometimes criticised, sometimes admired) dynamic interpretation since the judgment did not even attempt to reason out the fine distinctions and nuances concerning “fair dealing”, “fair use”  and “enumerated exceptions”.  The judgment, in fact, went beyond the realms of extant jurisprudential understanding without even discussing them especially when precedents are binding in a common law jurisdiction like India. Of course, the judiciary in India is free to take an altogether different path in jurisprudence and interpretation. But it should be mandatorily based on reason. Reason pervades the Indian polity, thanks to Constitutionalism and Rule of Law.

If Section 52(1)(i) was treated as a limited exception (as it should have been), it could have been narrowly interpreted so as not to flout ‘access to education’. It would have probably struck a fine balance between the interests of publishers and ‘access to education’. The beauty of Indian economy lies in its huge geographical market with a very high demographic dividend. Accordingly, even a minuscule amount per course pack as royalty (like say, Re 1 per course pack) can generate dignified returns to the publishers. We, however, admit that the absence of empirical data is a major setback and some of the arguments presented here may be criticised as mere conjectures. Even then, legal and jurisprudential arguments presented above, are tenable enough to strengthen the case of publishers.

It is an altogether different matter whether a limited Section 52(1)(i) will result in future exploitation and enervate ‘access to education’. Possibility of exploitation cannot alter the position of law. In fact, the focus must have been on regulation of exercise of copyright rather than negating the relevance of copyright altogether. Prashant rightly pointed out that the broad (and complicated) compulsory licensing provisions are always available as safeguards vis-a-vis threat of exploitation in future. Further, the judgment is silent on the ambit of private use exception i.e copying of books by students in the course of instruction. As to this extent, the judgment has a chilling effect on evaluating the realistic implications.

As to summarise, we are of the view that the judgment put the cart before the horse. And it is not legally and jurisprudentially sound. Therefore, the publishers have a strong case in appeal proceedings.

[1] On a related note, Prof. Shamnad, who agrees with the judgment, suggested a ‘reasonable nexus’ test  viz., “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.” Please note that the judgment hasn’t put forward any test whatsoever so as to address the legal concerns raised in this article.


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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