Breaking News: Publishers File Appeal in DU Copyright Case

As some of you may have heard, publishers filed their appeal today against Justice Endlaw’s pathbreaking decision in the DU copyright case. It runs into more than a thousand pages! For a scanned copy of this appeal, see our SpicyIP resources page here.

As we noted earlier, Justice Endlaw endorsed a strong right to educational access in his decision, and paved the way for a progressive copyright frame, where private commercial interests would have to yield to larger social goals such as education.

In an earlier piece, I noted the various write ups on this decision (and on this blog, we’ve taken  opposing positions), including a piece of mine where I argued that a “reasonable nexus” test can quell any fears of unwarranted full text copying. In any case, this decision was limited to copying of excerpts for course-packs and the judge did not specifically deal with full text copying.

I’ve taken only a very quick look at the appeal filed by the publishers and here are the key points.

1. Publishers argue that Justice Endlaw’s decision effectively dedicates all academic texts to the public domain. This is not true at all! Section 52(1)(i) is limited to copying during the course of educational instruction. There must be a reasonable nexus between the copying and educational instruction. So one cannot read the decision to mean a wholesale copying of all academic books. And as I mentioned earlier, the issue before the judge was limited to copying limited excerpts of books for the creation course packs. And not full text copying of books.
2. Interestingly, publishers label the decision as a “creative” interpretation of the law. Huge compliment to the judge no doubt! And I guess the best way forward for the law which is often accused of being too “literal” (as opposed to “lateral”) and non creative!
3. The appeal again offers the IRRO as a tantalising option. As we noted in this piece here and in several earlier posts, the IRRO is the most dangerous option currently. To reiterate:The history of collecting societies in India is a murky one; filled with fraud and mismanagement – and the IRRO itself has come under attack multiple times for its opacity and lack of good governance. In any case, the IRRO proposal (as presented to the Court) limited the copying to only 15% of a copyrighted work – which, in many cases could be said to constitute a free “fair use” even in the world’s largest capitalistic economy, namely the US.  Further, when a similar system to the one proposed by the publishers was implemented in Canada, collecting societies ratcheted up their licensing fees to exorbitant levels, causing some universities to walk out of these licensing arrangements. We’d already blogged on this issue in previous posts here and here.
4. Problematically, publishers again claim that section 52(1)(i) is a very narrow exception…and has to be seen as an exception! And not a full fledged right of access to educational materials, as the judge had done. To this end, publishers reiterate many of the arguments they made at the first instance when they first brought the suit. For one, that section 52(1) (i) only applies inside the classroom. Justice Endlaw rightly noted in his decision that this is a narrow view of education which in todays context cannot be confined to the four walls of a classroom! Publishers also claim that section the defence applies only to students and teachers and not to Universities (as institutions). And that it is section 52(1)(h) that applies to this case which deals with making a commercial compilation of mainly non copyright exception. A worthless defence, if there was one and hardly applicable to the educational context, where Universities and teachers put together course packs only for students…and not for the general public! And certainly not to sell as commercial compilations! An argument that was rightly rubbished by the trial judge, Justice Endlaw.

One hopes that the division bench before whom this case is filed will not take us back to the copyright dark ages where private rights trump all else. And defences to be treated as narrow exceptions. Rather as the inimitable Bill Paltry once noted (thanks to Ariel Katz, an outstanding Canadian IP scholar who’s been championing similar causes in that part of the world for the reference):

“What Judge Leval, Chief Judge MacLachlin [sic], and the early common-law judges who created fair use understood is that copyright is a system; it is not a thing, it is not a property right. Copyright is a means to an end, the end being to encourage learning. All learning is a community experience, and one that takes place over generations, over decades, over centuries. For any system to function, it must take into account, in a meaningful, liberal way, the manner in which humanity proceeds. In the case of copyright, this means that fair use must be viewed as an integral part of the system, and not a begrudging exception to a Hobbesian state of nature where ruthless enforcement of exclusive rights as private property is the ideal.”