Earlier this month, in the DU photocopy suit that was remanded to the Single Bench by the Division Bench on certain issues, Justice Endlaw passed an order firmly refusing the applications filed by two publishers’ associations (API and FIP) and IRRO for impleadment and intervention in the suit respectively. He reasoned that the suit had been remanded only for a fact specific determination that concerned the Plaintiff-publishers alone and the applicants had no say in it.
As our readers may recall, last month the Division Bench of the Delhi High Court had, in the DU photocopy case, held that making and distribution of course packs to students does not amount to copyright infringement as long as it is for the purpose of educational instruction. It had thus remanded the suit to the Single Bench for a fact specific determination on whether the copyrighted materials included in the course packs in this particular case were necessary for the purpose of instructional use by the teacher to the class or not. It had also permitted the Plaintiff to amend the plaint and plead the fact that apart from course packs, eight books were found to have been photocopied back to back. Accordingly, the suit was listed before the Single Judge, Justice Endlaw (who had earlier dismissed the suit) on January 20, 2017.
Applications for Impleadment/Intervention by API, FIP & IRRO
Indian Reprographic Rights Organisation (IRRO) and publishers’ associations, Federation of Indian Publishers (FIP) and Association of Publishers in India (API), who had intervened in the appeal before the Division Bench, filed applications for intervention and impleadment (respectively) in the remanded proceedings before the Single Bench as well. On being asked about the purpose that the impleadment/intervention would serve, the applicants advanced the following arguments:
- That the decisions by the Single Bench and Division Bench were rendered on the application for temporary injunction under Order 39 of the Civil Procedure Code and thus the question of law has not yet been finally decided by the court;
- That IRRO would become redundant if the Division Bench is considered to have made a final decision on the legal question involved in the suit;
- That they are entitled for impleadement/intervention before the Single Bench as they were allowed the same before the Division Bench;
- That the issue of cover to cover photocopying of books is a question of law and has been expressly left open by the Division Bench as per para 79 of its judgment, particularly the sentence: “The issue would then arise whether photocopying of entire books would be a permissible activity”. And that they are interested in determination of this legal issue.
- That the other issue remanded by the Division Bench i.e. whether the inclusion of copyrighted works in the course packs was justified by the purpose of educational instruction, is an issue of both fact and law.
Refusal of Applications by the Single Bench
Justice Endlaw did not find merit in any of the above arguments of the applicants and thus refused to grant their applications for impleadment/intervention.
- He disagreed with the applicants that the decisions of Single Bench and Division Bench were on the application for temporary injunction and emphatically stated that these decisions were on the suit itself and the findings made on questions of law were not prima facie but final. He noted that “once a question of law has been threshed out threadbare, the question of the same being still at large pursuant to remand does not arise” and clarified that the remand by the Division Bench was a limited remand on a question of fact. The evidence before it had to be thus restricted to the same and the applicants were said to have no role in it.
- As response to the redundancy contention raised by IRRO, Justice Endlaw noted that it was for IRRO to raise it before the Division Bench and if it had been so raised (as stated by IRRO), it cannot be re-urged before the Single Bench even if there was no express finding returned on it. Placing reliance on the Supreme Court’s judgment in Akram Ansari v. Chief Election Officer [(2008) 2 SCC 95], he observed that “A contention raised before the Court, even if not specifically dealt with, is deemed to have been considered and disposed of in accordance with the final order”.
- Justice Endlaw also rejected the applicants’ contention based on permission granted for impleadment/intervention before the Division Bench, holding that
“intervention/participation before the Division Bench was necessary as a question of law of vital importance was for adjudication. However, now that the question of law has been adjudicated and the remand of this suit is for determination of the limited factual controversy in accordance with law declared by the Division Bench, the applicants cannot have any role in the remanded proceedings.”
- Most significantly, he refused to accept the applicants’ contention that the remanded issue of full text copying was a question of law and clarified that as per the law laid down by the Division Bench, application of Section 52(1)(i) is not hinged upon the extent of copying but on whether the extent of copying was justified by the purpose of educational instruction. He noted that “[a]s per my understanding of the judgment of the Division Bench, what the Division Bench has left for factual determination is whether the extent of photocopying is “in the course of instruction” within the meaning of Section 52(1)(i) of the Copyright Act. If the Division Bench had found the law under Section 52(1)(i) of the Copyright Act, 1957 to be in relation to the extent of photocopying, the Division Bench would have held so but which I am unable to decipher from the judgment.”
- Justice Endlaw also disagreed with the applicants’ view that the remanded issue on determination of the purpose of inclusion of copyrighted works in course packs was a question of fact and law. He held that “[t]he same would be in the context of the material before the Court i.e. whether the photocopying in the course pack is for instructional use by the teacher to the class or not. Any non-party to a suit who has not alleged infringement, in my view, cannot have a say on the said aspect.”
Accordingly, the Single Bench refused to allow impleadment/intervention of API, FIP and IRRO before it, holding that the Division Bench had remanded the suit only for a factual determination as to the purpose of inclusion of the copyrighted works in the course packs and no party except the Plaintiff-publishers had a say in it.
Clarification on Remanded Issues to be Sought from Division Bench
The applicants stated that they will seek clarification from the Division Bench on the remanded issues within a period of four weeks and requested the Bench to hold over the applications till then. Justice Endlaw accordingly listed the matter on February 28, 2017 and also granted a last opportunity to the Plaintiff-publishers to amend their plaint (as allowed by the Division Bench) within four weeks, so as to the plead the fact of full text copying of books.
Image from here