As informed to our readers earlier, a panel discussion on ‘Copyright and Course Packs: A Collision of Competing Values?’ was organized by the Oxford Intellectual Property Research Centre (OIPRC) and the Oxford India Centre for Sustainable Development (OICSD) on November 24, 2016 at Somerville College in Oxford. The panel comprising leading copyright law scholars and representatives of the publishers discussed the implications of the judgment passed by the Single Bench of the Delhi High Court in the DU photocopy case on September 16, 2016, wherein it was held that university authorized creation of course packs (consisting of photocopied excerpts from copyright-protected works) falls within the ambit of Section 52(1)(i) of the Indian Copyright Act, 1957 that permits reproduction of copyrighted works in the context of educational use (specifically, ‘by a teacher or pupil in the course of instruction’). The panel discussion was moderated by Dr. Dev S. Ganjee (Oxford Law Faculty & OIPRC). The slides of his introductory presentation can be viewed here.
The first panelist, Mr. William Bowes, General Counsel at Cambridge University Press and Chair of the International Board of the Publishers’ Association, presented his views on how copyright enables the global provision of knowledge and education. He stated that academic publishers value fair access to their works, which is not equivalent to free access and argued that the copyright system would be adversely affected if individual countries start interpreting the educational use exceptions broadly.
He was followed by Dr. Emily Hudson, Senior Lecturer, Dickson Poon School of Law, King’s College London. According to Dr. Emily, while the literal wording of Section 52(1)(i) is too narrow, the Single Judge’s interpretation is too broad and gives the impression that scope of the provision is unlimited. She proposed a number of approaches that could be adopted for limiting the operation of Section 52(1)(i) and opined that the interpretation must also depend on normative views regarding difficulties faced by students as well as interests of other stakeholders. Lastly, she presented the view that a victory for the publishers in the case would not provide a solution to the problems resulting from increased open access publishing and emergence of commercial databases. The slides of her presentation can be viewed here.
The third panelist, Professor Uma Suthersanen, Chair in International Intellectual Property Law, Queen Mary, University of London supported Single Judge’s approach of construing copyright exceptions as user’s rights, which according to her reflects the evolution of human rights law and recognizes that IP norms should interact with the constitutional norms. She opined that user rights can be expressed in terms of collective interest as opposed to individual interest. She further expressed support in favour of Single Judge’s interpretation of Section 52(1)(i) that permits institutionalized reproduction (via course packs) as well and not merely individual reproduction within the classroom. The slides of her presentation can be viewed here.
Lastly, Professor Lionel Bentley, Herchel Smith Professor of Intellectual Property, University of Cambridge, presented his views on the international dimensions of the case. He countered the argument of the publishers that the Single Judge’s decision violates the ‘three step test’ under the Berne Convention and TRIPS by arguing that: (a) the three step test is not applicable in this context and (b) assuming it is applicable, Single Judge’s decision does not violate it. The slides of his presentation can be viewed here.
The report of the panel discussion, containing the views of each of the panelists in detail, can be viewed here.
The appeal filed by the publishers against the Single Judge’s judgment has now been decided by the Division Bench of the Delhi High Court. In the judgment pronounced on December 9, the Division Bench comprising Justices Pradeep Nandrajog and Yogesh Khanna, like the Single Judge, refused to grant an interim injunction to the publishers and ruled in favour of students’ access to education. It interpreted Section 52(1)(i) as permitting photocopying of copyrighted works for preparation of course packs, irrespective of the quantity, as long as it is for 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. A detailed post on the judgment shall follow soon!