Justice Endlaw’s judgment in the DU photocopy case, while hailed as historic by many for having endorsed the right to educational access in India, has been criticized by some as one that would lead to the decline of academic publishing in India. One of the criticisms, raised also as a ground of appeal by the publishers, has been that the judgment does not place any numerical restriction on the unauthorized photocopying of books by educational institutions permitted under Section 52(1)(i) of the Copyright Act, 1957 and thereby allows photocopying of entire books as well. In a recent post, this criticism was expressed by Prashant in the following words: “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…..This case cannot be read as dealing with only 10% of a book. Justice Endlaw’s judgment green lights the photocopying of entire books for the purpose of educational use.” In this post, I attempt to dispel this myth that the judgment has permitted unauthorized photocopying of entire books, one that has left many sceptical of the judgment.
Issue before the court limited to course packs
Firstly, as already pointed out by Prof. Basheer, the issue before the Delhi High Court in this case was only whether the unauthorized making and distribution of ‘course packs’ (defined as “compilations of photocopied portions of different books”) by the Delhi University and Rameshwari Photocopy Services was permissible under the Copyright Act. This is amply clear from paragraphs 22 and 82 of the judgment which state as follows:
“22...The only question to be adjudicated thus is, whether the making of course-packs as the defendant No.2 University is making, amounts to infringement of copyright.
82.The next question is, whether the action of the defendant no.2 University of supplying the master copy to the defendant no.1, granting licence to the defendant no.1 to install photocopiers in the premises of the defendant no.2 University, allowing the defendant no.1 to supply photocopies made of the said master copy to the students, permitting the defendant no.1 to charge therefore and also requiring the defendant no.1 to photocopy up to 3000 pages per month free of cost for the defendant no.2 University and whether the action of the defendant no.1 of preparation of such course packs and supplying the same to the students for charge, constitutes publication’ within the meaning of Section 52(1)(h) or would tantamount to infringement by the defendant no.1 or the defendant no.2 University of the copyright of in the said books.”
The allegation of the plaintiffs itself, as demonstrated by paragraph 14 of the judgment quoted below, was limited to photocopying of a maximum of 33.25% of a book.
“14. It is the contention of the counsel for the plaintiffs ….. (zn) it was demonstrated that the extent of copying of the textbooks in a course pack ranges from 5% of the contents of the book to as much as 33.25% of the contents of the book and it was argued that the copying would thus qualify as substantial. …”
The permissibility of photocopying of entire books was thus not in issue before the court and therefore, it cannot be said that its decision applies to cover to cover photocopying of books as well.
Factors considered by the court included photocopying of entire books not being in question
Secondly, while deciding upon the issue of permissibility of DU’s engagement of Rameshwari Photocopy Services for making and distribution of course packs to students, the court specifically took into account the fact that there was no full text copying in question to reject the plaintiffs’ contention that by doing so, DU had allowed Rameshwari to function as their competitor. In paragraph 87 of the judgment, it noted as below:
“87. It is not the case of the plaintiffs that the defendant no.2 University has permitted the defendant no.1 to or that the defendant no.1 is photocopying the entire books, binding the same, offering or displaying the same for sale to whosoever may be desirous of purchasing the same. The case of the plaintiffs before us is only of preparation of course packs i.e. compilations of photocopied portions of different books prescribed by the defendant no.2 University as suggested reading in its syllabus. That, in my view, by no stretch of imagination, can make the defendant no.1 as competitor of the plaintiffs. …”
This extract from the judgment shows not only that the court was considering the issue of making of course packs only and not photocopying of entire books but also that its decision was guided, among other things, by the fact that photocopying of entire books was not in question.
Conclusion of the court limited to course packs
Thirdly, the conclusion of the court in this case, as evident from the paragraphs 81 and 90 of judgment quoted below, was limited to photocopying of certain portions of books for making and distribution of course packs.
“81. I thus conclude that the action of the defendant no.2 University of making a master photocopy of the relevant portions (prescribed in syllabus) of the books of the plaintiffs purchased by the defendant no.2 University and kept in its library and making further photocopies out of the said master copy and distributing the same to the students does not constitute infringement of copyright in the said books under the Copyright Act.”
90. I thus conclude that the engagement as aforesaid by the defendant No.2 University of defendant No.1 does not convert the action of defendant No.2 University as held hereinabove to be not amounting to infringement of copyright in books, to infringement.”
Thus, the court cannot be said to have made a sweeping conclusion that has thrown open the door to unauthorized photocopying of entire books by educational institutions.
For these reasons, in my opinion, it is not correct to argue that Justice Endlaw’s judgment conclusively allows unauthorized photocopying of entire books. Although it is perhaps correct to say that the judgment does not specify a limit on the percentage of a book that may be photocopied, it is unclear as to the extent to which it permits since the court was dealing only with photocopying of a maximum of 33.25% of a book (as alleged by the plaintiffs) and not of an entire book. If an issue of permissibility of cover to cover photocopying of books under Section 52(1)(i) ever crops up before a court, it could be decided by applying the reasonable nexus test as proposed by Prof. Basheer. If the photocopying of the entire book is found to be reasonably necessary for furtherance of educational instruction, the court could hold it to be permissible. The judgment in the DU photocopy case, however, cannot be said to have conclusively permitted unauthorized photocopying of entire books.
Image from here