One of the issues that has arisen out of Justice Endlaw’s judgment in the DU photocopying case is whether it allows for photocopying of entire copyrighted works.
Shamnad and Ananth Padmanabhan in two different op-eds in the Indian Express argue that the judgment doesn’t allow for photocopying of entire books because the facts in dispute dealt with the photocopying of an average 10% of various books. I would like to argue otherwise.
On the issue of facts, please do refer to this list of works that were at dispute in this judgment. Several of the books in this list are edited volumes of essays written by different authors. You can refer to the table of contents of two of these books here: ‘Transforming India: Social and Political Dynamics of Democracy’ and ‘Ethnonationalism in India’. Each chapter in these books is a literary work (as understood in Copyright Act) in its own right under the Copyright Act and each one of these authors may or may not assign their copyright to the publisher. In any case, these books are compilations of different copyrighted works. When a chapter from one of these books is photocopied, I would argue that what is relevant is the fact that an entire copyrighted work has been copied. This chapter may be 10% of a book but for the purposes of copyright law the chapter is a copyrighted work in itself.
Since the course packs at dispute in this case consist of different copyrighted essays from such edited volumes, I would argue that Justice Endlaw’s judgment was not dealing with a certain percentage of a book but rather that it was dealing with the photocopying of entire copyrighted works. So the same logic that applies to a copyrighted work that is a chapter will also apply to a copyright work that is a book. Facts aside, it may also help to look at Endlaw’s judgment. Nowhere in the judgment, does Justice Endlaw bring up the issue of percentages of a copyrighted work. In paragraph 53 he states:
However for the action of reproduction of such work by the defendant no.2 University to, under Section 52(1)(i), not constitute infringement of copyright in the said works, the same has to be ―by a teacher or a pupil in the course of instruction.
It is clear from the above extract that the only factors guiding his judgment are whether the ingredients of Section 52(1)(i) are fulfilled i.e. if the reproduction has taken place for educational use by a teacher or pupil and whether such reproduction has taken place in the course of instruction.
So if we are going by only the facts of this case, I would argue that the facts deal with the photocopying of entire copyrighted works because some of the course packs contain entire copyrighted works and not a percentage of a copyrighted work.
This case cannot be read as dealing with only 10% of a book. In other words, Justice Endlaw’s judgment green lights the photocopying of entire books for the purpose of educational use. If the judgment stands on appeal, the publishers may as well shut shop and set up photocopying shops. I think the profits will be much better.
Image from here
Completely, agree with you, the judgement has taken us back a few years. If people stop paying for books, there is no incentive for authors or publishers to do their bit. This is blatant copyright infringement and shouldn’t fall within the realms of fair use, simply due to the volume of usage.
In my opinion, the onus was on the University to provide subsidised text books to it’s students who needed financial aid or set up a process for second hand books to be made available. The university could have even struck a deal with a publisher to provide books at a discount students. Fair Use at such a scale is unfair use to publishers and authors.
The bigger challenge today, is the pdf sharing of books. Today with a click of a button, books are being shared, downloaded, printed for free without publishers earning a dime from the same. The loss from file sharing of book one can imagine would be much higher than photocopying texts books.