Subsidies for Academic Publishing and Access to Education in Light of the DU Photocopy Case

fProf. Satish Deshpande, a reputed sociology professor at the Delhi University, recently authored an enlightening piece in The Indian Express on the academic publishing ecosystem, titled Copy-wrongs and the invisible subsidy’. In light of the on-going DU photocopy case, (read more on the background and our coverage of the case here) he examines how academic publishing actually receives an implicit and explicit subsidy from the intellectual commons. He notes that the case raises important questions on the ownership of works produced in the intellectual commons. For the uninitiated, the intellectual commons as a concept refers to the shared knowledge base, or intellectual resources available in the public domain, that can be used without seeking permission.

Prof. Deshpande culls out four facts on which he reasons the need for reconsideration of such ownership:

Commercial academic publishing is not really a ‘commercial enterprise’

First, that commercial academic publishing does not really qualify as a ‘commercial enterprise’ in the normal sense of the term. He notes that unlike a commercial enterprise that claims full ownership of its products, having incurred reasonable cost for the inputs and key services, academic publishers do not face any major expenses for the same. As far the acquisition of manuscripts from authors is concerned – the lifetime royalties that they sign away their work for are usually meagre, as they rely upon salaries from their parent institutions. The review and editing process is done by academics who again, are paid little or nothing for their work. Additionally, free and effective promotion and publicity for these works is provided by other academics and their students who act as captive consumers.

Quality higher education and ‘overzealous’ copyright law are not compatible

Second, that quality higher education, and ‘overzealous’ copyright law are not compatible. He compares the markets for university and school students, pointing out that not only are the reading lists of university students wide and frequently changing, their numbers are far lesser than school students. Due to this the university education market does not have the advantage of economies of scale that the school education market does and making higher education generally unaffordable if all readings are to be bought at market prices. He notes that alternative licensing systems have been difficult to implement in advanced economies, and are sure to face obstacles in India.

Technological Transformation of Publishing

Third, he brings up the vital point of publishing making the shift to an electronic form. The technological transformation of publishing, or digitisation and distribution over internet now poses a threat to traditional publishers. There are now many open access initiatives being undertaken in the world to correct the wrongs in academic publishing, and are hoped to gain popularity in India as well. The Coalition of Open Access Policy Institutions (COAPI) and the Scholarly Publishing and Academic Resources Coalition (SPARC) are examples of such initiatives.

Academic publications are peripheral to the Indian Copyright Act

Fourth, he opines that academic publications are peripheral to the Indian Copyright Act, which is instead mainly concerned with “mass-market, high value” intellectual property such as films or popular music. Stressing on the relevance of education as a public good, he rationalises the exemptions provided for academic publications and educational use under the Act.

In conclusion, he notes that even if the publishers succeed in their appeal, they may not gain as much as they expect. Academic publishers who cater more to institutional, rather than individual buyers will continue to do so, and would thus not stand to lose a significant portion of the healthy profits they make due to “one-room photocopy shops” serving Indian universities. He points out that through pursuing this sort of litigation, publishers only draw attention to the fact that they are operating under subsidies that they receive from the intellectual commons, and also bring to light the larger truth that “students, teachers and academic publishers are natural allies with a strong stake in each other’s well-being”.

The publishers in the DU case had contended that due to their investment in publishing the books, not affording them copyright protection would be a “death knell” for the publication business, making it an unfeasible venture. Prof. Deshpande’s article provides a counter to Prashant’s argument that publishers actually do incur substantial costs in the publishing process by hiring editors, and building up goodwill, amongst other things. In his post, Prashant rationalises monetising unauthorised copying as an avenue for the publishers to recover these costs, and importantly notes that Court sanctioned photocopying would now dissuade publishers from investing in small academic markets, which would ironically be in the detriment of the same students who would purchase these course packs.

While Prashant brought up a few very valid points, this would continue to be somewhat of a he said-she said game until the publishers disclose the actual costs incurred in publication, offsetting subsidies received. As noted by Rajshree Chandra, studies suggest that big publisher’s profit margins have only increased with time. The point of subsidisation of academic publishing that Prof. Deshpande brings up is not to be taken lightly, as it compels one to reconsider the academic publishers’ claim of having ‘full’ ownership over works produced in the intellectual commons. With regard to the DU photocopy decision now on appeal, the court would do well to consider the realities of the academic publishing industry discussed by Prof. Deshpande along with the letter of the law while arriving at a final decision.

Image from here.

Inika Charles

Inika is a fifth year student at National Law University, Jodhpur, and is on the founding Board of Editors of the Journal of Intellectual Property Studies. She has a strong interest in Intellectual Property, and is fascinated with the intersection of IP with Technology and Media law. You can contact her at [email protected], or on Twitter: @inikacharles

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