As many of our readers may already be aware, a Division Bench of the Delhi High Court, last week, pronounced the judgment in the DU photocopy case appeal that marked a spectacular victory for access to education in India. In a 58 page judgment, rendered in less than two weeks from the start of the appeal arguments, the Bench comprising Justices Pradeep Nandrajog and Yogesh Khanna refused to grant an interim injunction to the plaintiff-publishers and emphatically ruled that making and distribution of course packs to students does not amount to copyright infringement as long as the inclusion of the works photocopied was justified by the purpose of educational instruction. Accordingly, it remanded the suit to the single bench for a fact specific determination on whether the copyrighted materials included in the course packs in this case were necessary for the purpose of instructional use by the teacher to the class. Until then, the course packs can continue to be made and supplied to the students.
Two wonderful opinion pieces on this judgment, one by Prof. Shamnad Basheer and the other by Lawrence Liang can be read here and here.
On September 16, 2016, a Single Judge of the Delhi High Court had dismissed the suit filed by the three publishers in 2012 seeking an injunction restraining the Delhi University (DU) and Rameshwari Photocopy Service from infringing their copyright by unauthorized making of course packs, compiling photocopies of relevant excerpts from their books prescribed in the syllabus, and their distribution to students. It held that the impugned acts of the Defendants clearly fell within the ambit of Section 52(1)(i) of the Copyright Act, 1957 that permits reproduction of works by a teacher or student in the course of instruction and thus did not amount to copyright infringement. On October 5, 2016 the publishers filed an appeal against this judgment before the Division Bench, which was admitted on October 6.
Division Bench’s Judgment
On December 9, 2016, the Division Bench decided the appeal interpreting Section 52(1)(i) of the Copyright Act as permitting photocopying of copyrighted works for preparation of course packs, irrespective of the quantity, as long as it for the purpose of educational instruction. The highlights of the judgment, penned by Justice Nandrajog, are as follows:
A. Section 52(1)(i) and Fairness
The court began by noting that since Section 52(1)(i) does not have an express fair use limitation, only the general principle of fair use can be read into it. It rejected the application of the four factors used for determination of fair use in other jurisdictions, especially the US, to this clause. It laudably noted that fairness of the use under this clause is to be determined only by the purpose of the use i.e. education and not by its quantitative or quantitative extent. It also held that the fair dealing standard has been prescribed only in clause (a) of Section 52(1) and thus cannot be imported into its other clauses including clause (i). The relevant paragraphs of the judgment read as follows:
“In the context of teaching and use of copyrighted material, the fairness in the use can be determined on the touchstone of ‘extent justified by the purpose’. In other words, the utilization of the copyrighted work would be a fair use to the extent justified for purpose of education. It would have no concern with the extent of the material used, both qualitative or quantitative. The reason being, ‘to utilize’ means to make or render useful. To put it differently, so much of the copyrighted work can be fairly used which is necessary to effectuate the purpose of the use i.e. make the learner understand what is intended to be understood…Thus, we reject the arguments by learned counsel for the appellants that the four factors on which fair use is determined in jurisdictions abroad RFA(OS) No.81/2016 Page 36 of 58 would guide fair use of copyrighted material during course of instruction. The qualitative and quantitative test which is one of the four tests would not apply to clause (i)… Further, while the Court in B.D. Bhandari’s case (supra) did hold that a fair dealing standard was to be read into all clauses of Section 52 of the Copyright Act, 1957, as held hereinabove, a fair dealing standard has only been provided in clause (a) of sub-Section (1) and not in the other clauses of sub-Section (1) of Section 52, and therefore, cannot be read into the other clauses.” [paragraphs 33, 35 & 72]
Thus, the Division Bench’s judgment clearly held that in order to determine whether the use of a copyrighted work is permitted under Section 52(1)(i), it is only to be seen whether the work used was necessary for achieving the purpose of educational instruction, irrespective of whether only a certain percentage of the work or the entire work is used. Such a reasonable nexus test was earlier proposed by Prof. Basheer here.
B. Impact of Course Packs on Market of Publishers’ Works
The court rejected the argument of the publishers that unauthorized making and distribution of course packs has caused or is likely to cause an adverse impact on the market of their books. It observed that a student is not a potential customer of the multiple books used in the course packs and in the absence of course packs he/she would refer to these books in the library. Interestingly, it further noted that instead, the improved education could very well lead to an expansion of the market for these books.
C. Meaning of ‘Reproduction’, ‘Teacher’ and “Pupil’
The court then proceeded to the interpretation of Section 52(1)(i), which formed the core issue in the case. Relying upon Section 13(2) of the General Clauses Act, 1897, it held that the word ‘reproduction’, meaning ‘making a copy of’, includes its plural as well i.e. making more than one copy of the original or photocopying. Similarly, it held that the words ‘teacher’ and ‘student’ also include ‘teachers’ and ‘students’ and thus concluded that making of multiple copies of a work by teachers or students is contemplated under this provision.
D. Meaning of ‘In the Course of Instruction’
Next, the court dealt with the question of interpretation of the phrase ‘in the course of instruction’ that was highly contested between the parties. It accepted the argument of the respondents that irrespective of whether the word ‘course’ is read as a verb or a noun, the phrase ‘in the course of instruction’ would mean the entire process or programme of education in a semester and not the process of teaching in the classroom alone. The court acknowledged that teaching does not involve simple lecturing by the teacher and taking of notes by the students in the classroom but an interactive discussion based on the pre-reads etc. by the students that is regulated by the teacher. It further placed reliance on the judgment of the High Court of New Zealand in Longman Group Ltd. v. Carrington Technical Institute Board of Governors [(1991) 2 NZLR 574], wherein the words ‘in the course of instruction’ in Section 21(4) of the New Zealand Copyright Act, 1962 were interpreted to include “anything in the process of instruction with the process commencing at a time earlier than the time of instruction, at least for a teacher, and ending at a time later, at least for a student. So long as the copying forms part of and arises out of the course of instruction it would normally be in the course of instruction”. The court found this to be the only logical interpretation of this phrase and termed the judgment as an authority on this point due to the similarity in the language of Section 52(1)(i) of the Indian Copyright Act and Section 21(4) of the New Zealand Copyright Act. It thus concluded that the phrase ‘in the course of instruction’ included within its ambit preparation and distribution of course packs to students.
E. Distribution of Course Packs: Publication?
The Division Bench disagreed with the view taken by the Single Bench that distribution of course packs to ‘students’ does not amount to publication by opining that “[p]ublication need not be for the benefit of or available to or meant for reading by all the members of the community” and that “[a] targeted audience would also be a public”. However, it rejected the argument that the issue of course packs in this case amounted to publication on the basis that publication requires an element of profit which was absent in this case. Although the court reached the right conclusion, the reasoning adopted by it seems to be incorrect. The court failed to explain how a limited group of students enrolled in a course in a university could be said to amount to ‘public’. Distribution of course packs to a limited group of students, as opposed to the members of the general public, cannot be said to be ‘publication’. This finds support in the judgment in Caird v. Sime (1887), wherein the House of Lords held that students of a university cannot be said to represent the members of the general public and thus delivery of a lecture by a professor to them does not amount to communication to the ‘public’. Similarly, in Martin Luther King JR. Inc. v. CBS Inc. (1999), the US Court of Appeals in the Eleventh Circuit observed that a general publication occurs only if copies of a work are issued to the members of the general public. Therefore, although the court was right in holding that distribution of course packs to students in this case does not amount to publication and thus Section 52(1)(i) would apply, it went wrong in observing that issues of copies of a work to a targeted audience such as a limited group of university students enrolled in a course could also amount to ‘publication’.
F. Use of an Intermediary/Agency for Making of Course Packs
The court further dealt with the argument of the publishers that reproduction of works under Section 52(1)(i) can be made only by a teacher or a pupil and not by an intermediary i.e. the photocopier. It rejected this argument by rightly observing that “common sense tells us that neither the teacher nor the pupils are expected to purchase photocopiers and photocopy the literary work to be used during course of instruction in the class room”. It further noted that the photocopier in this case was not making any profit apart from the usual profit it would be making by simply photocopying material. Accordingly, it found the argument against use of an agency to be irrelevant.
G. Making of Course Packs by Educational Institutions
The court also rejected the argument of the publishers that Section 52(1)(i) was not applicable to educational institutions but only to an individual teacher. Unlike the Single Judge who clearly held that the benefit of this provision was also available to educational institutions as well and thus to DU, the Division Bench did not even deal with this interpretive question. It simply refused to find any institutional sanction for photocopying in this case for DU’s role is limited to laying down the course curriculum and it is the individual teacher/teachers only who select the copyrighted works to be included as reading materials in the course packs. In short, it found that the course packs in this case were made and distributed by the teachers and not DU and thus clearly fell within the ambit of Section 52(1)(i).
H. Int’l Obligations and Foreign Decisions
The argument of the publishers based upon Article 13 of the TRIPS Agreement and Article 9 of the Berne Convention was dismissed by the court noting that “the contents thereof are merely directory and have enough leeway for the signatory countries to enact the copyright law in their municipal jurisdiction concerning use of copyrighted works for purposes of dissemination of knowledge”. The court also found the decisions of the US, Canada and UK courts, relied upon by the parties, to be of no relevance in the Indian context because the concept of fair use and fair dealing is different in those countries.
I. IRRO Licensing
The court did not even deal with the fallacious argument made by the publishers that the only way to balance the interests of the students and academic publishers is to direct the universities to obtain licenses from IRRO for reproducing the relevant extracts from their books.
The Division Bench therefore dismissed the appeal concluding that Section 52(1)(i) permits unauthorised preparation and distribution of course packs to students, if the works included therein are necessary for effectuating the purpose of the course packs i.e. educational instruction. It thus remanded the suit to the trial court for factual determination of whether the works included in the course packs in this case were necessary for achieving the purpose of education instruction or not. It also allowed the publishers to amend their plaint and plead the fact of cover to cover photocopying of eight books that found mention in the Local Commissioner’s report and directed the trial court to make a factual determination on permissibility of these copies as well. The court refused to grant an interim injunction in favour of the publishers and only directed the photocopier to maintain a record of the course packs photocopied and supplied to students and file the same in the suit every six months.
This welcome judgment not only marks a victory for students’ access to education and clarifies the scope of Section 52(1)(i) but also serves as guidance for interpretation of other clauses of Section 52 that unlike clause (a) do not lay down a fair dealing standard. The judgment makes it clear that only a general fair use principle is to be read into all such clauses, which requires fairness to be determined only on the touchstone of the purpose of the use and/or other limitations expressly built in each of these clauses. Thus, the significance of the judgment also lies in its clarification that while there has to be fairness in every use of a copyrighted work, fairness under the Indian copyright law is not to be determined necessarily on the basis of qualitative or quantitative extent of the use and the other factors applied in the US and other jurisdictions.
Image from here