A New Indian Law Review and Its Scholarship on the DU Photocopy Case

In some good news, the Indian Law Review, founded by a group of Indian academics primarily based in UK, Australia, US and India, has published its first edition. Included in the first edition is an article by Lawrence Liang on the DU Photocopy case. Lawrence is an alum of NLSIU & Warwick, a co-founder of Alternative Law Forum (ALF) and a legend of sorts in the field of law and culture. I was his student on a few occasions at NLSIU and he always had us in a thrall with his talks, be it on Sholay and the law or generally literature and the law. He is currently the Dean of the School of Law, Ambedkar University Delhi.

Lawrence has worked on the educational exception under Indian copyright law for several years now and one of his articles was referred to by the Delhi High Court in its judgment. Needless to say, I do not agree with most of Lawrence’s conclusions on the DU photocopy case and I’m not going to relitigate all the issues here but I do have some very specific problems with Lawrence’s article which I will expand on below.

1. Copyright is not a natural right in India?

Lawrence praises Justice Endlaw for providing what he calls the “clearest philosophical vision of copyright articulated by an Indian court”. He then reproduces the following paragraph from the judgment:

“Copyright, [e]specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public.”

As I had mentioned in a post that I wrote exactly a year ago, after Justice Endlaw pronounced his judgment, the lines in the above paragraph of his judgment have been lifted from two American sources without attribution. The first two lines are, verbatim, from Judge Leval’s famous Harvard Law Review article on fair use and the next two sentences are from American judgments. The third sentence is verbatim from the American SC decision in Harper v Row. The first half of the fourth sentence is identical to another sentence in Harper v. Row but since the latter half has been changed, I think that can pass.

At the time, I pointed out these similarities, I refrained from using the ‘p’ word because the last time someone raised the ‘p’ word in the context of a judgment, the judge’s clerks were hung out to dry and I think that’s a tad unfair. In any event, I try to refrain from naming and shaming on issues of attribution because there are larger systemic issues regarding how law students in India have been trained in legal writing. But I felt constrained to point this issue out in more detail because Lawrence holds up this one para of the judgment as providing the “clearest philosophical vision of copyright articulated by an Indian court”, while also claiming at a later instance in his paper he states “The single judge and the division bench were united in their rejection of any attempt to uncritically adopt comparative law influences, including US standards, into Indian law.” Although he states in this context of the court’s rejection of American fair use standard, how does he then explain the court borrowing the philosophical foundation of American copyright law from Judge Leval’s article and the SCOTUS decision and rejecting the fair use articulation under American law?

Regarding the Indian position on copyright as a natural right, I had pointed out last year, the Indian Supreme Court’s own position on the philosophical foundations of copyright law has been contradictory.  I reproduce the relevant paragraph from my previous post as follows:

“At the same time, there are also copyright judgments of the Supreme Court which go both ways. In the ENIL case, Justice Sinha had pointed out to the utilitarian framework of the act when he said: “the Act provides for exclusive rights in favour of owners of the copyright, there are provisions where it has been recognized that public has also substantial interest in the availability of the works”. On the other hand Justice Chinnappa Reddy in the Gramophone case had this to say about copyrights: “An artistic, literary or musical work is the brain-child of its author, the fruit of his labour, and, so, considered to be his property. So highly is it prized by all civilised nations that it is thought worthy of protection by national laws and international Conventions relating to Copyright.”

In other words, the natural rights v. utilitarian foundations of Indian copyright law are far from settled and in any event, can be resolved only by the Supreme Court.

2. Providing the whole facts

At the height of the activism around the DU photocopy case, the students had put out several statements on how if they had to buy each and every book (as opposed to using a course-pack that consisted of chapters from different books) they would have to pay Rs. 80,000. The statement was a gross exaggeration because the publishers were ready to offer a licence for photocopying at 50 paise per page which meant a course pack that cost Rs. 250 would cost Rs. 500. While I understand students making these exaggerated claims as a part of their activism, I do think an academic piece on the subject needs to be more candid with respect to basic facts.

Lawrence’s piece does once fleetingly mention that the publishers were interested in “entering into large-scale institution-wide licensing agreements” but he is stingy with further facts on the 50 paise fee quoted by publishers. He however does mention the figure courted by students and why cost was an important part of the litigation when states:

“In addition, using an example of the prescribed syllabus of a single course in the MA sociology course at DU, the defendants demonstrated that there were over 20 prescribed books for the course, which would cost more than Rs. 80,000 per student if they were expected to buy them. This was a particularly compelling argument and served as a very graphic illustration of the serious impediments posed by the question of cost and availability of learning materials.”

Why not provide the other side of the argument?

Similarly, he states Amartya Sen urged the publishers to not proceed with the case. But if you read Sen’s letter, he does not tell the publishers to drop the case. If anything, the letter is a masterful balancing act and in fact it appears to me that he was nudging the publishers to adopt the course-pack model that was followed in American universities. He only states “As an OUP author I would like to urge my publisher to not draw on the full force of law to make these “course packs” impossible to generate and use. Educational publishers have to balance various interests, and the cause of education must surely be a very important one”.

3. Avoiding the tough questions

At one point, Lawrence draws extensively on Satish Deshpande’s op-ed in the Indian Express to make the case for why academics were against the publishers. He states in relevant part the following:

“It is not entirely surprising that many of the authors on whose behalf the publishers had filed their infringement suit turned against the publishers. In the immediate aftermath of Justice Endlaw’s judgment, Satish Deshpande, a professor of sociology at DU welcomed the decision in an opinion piece.⁵¹⁵¹ Satish Deshpande, ‘Copy-Wrongs and the Invisible Subsidy’, The Indian Express 7 October 2016. Providing an educator’s perspective on the case, he concluded that “quality higher education is not compatible with an overzealous copyright law”.⁵²⁵² Ibid. Deshpande lays bare the hypocrisy of a system in which academics (whose salaries are sustained by public money) and who offer free intellectual labour by way of peer reviews “gladly give away their manuscripts for lifetime royalties that are usually less than a single month’s salary”. “Buying the readings”, Deshpande adds, “for even a single course at market prices easily adds up to tens of thousands of rupees, turning a masters’ degree into an unaffordable multi-lakh luxury”.⁵³

Sure, the criticism is well articulated but Lawrence is silent on the fundamental issue of why academics continue to hand over the copyright in their academic works to publishers. Why not just self-publish on the internet? In my opinion, this is an important question because it goes to the heart of the debate why copyright law still has relevance in the digital world where students can technically read for free from Wikipedia. I provided a few answers last year based on my own experience of working with OUP to bring out a book on Indian IP law – simply put, publishers offer valuable services to academics and they need to be compensated for the same – copyright law offers them an avenue to recover those investments.

Given that this was the tough question for those opposing the publishers, it is unfortunate that Lawrence does not engage with it, especially the niggling question of the ramifications for Indian scholarship and the resources that publishers will be willing to invest in publishing Indian academics, especially those of us who teach and publish from India.  This question is all the more important since he published in the Indian Law Review, which although open access for the first issue is going to start charging a subscription fee and no matter how reasonable the price is, the publisher Francis & Taylor will put the material behind a paywall.

4. The debate on the Stockholm Protocol

In the conclusion to his article, Lawrence talks briefly about the Stockholm Protocol that was adopted in 1967 to provide developing countries the right to make reservations to the Berne Convention, in order to meet some educational and cultural objectives.

Lawrence states:

“In 1967, the Stockholm Conference Protocol Regarding Developing Countries was adopted as part of an effort to revise Berne to reflect the needs of these new countries. This was the first time that the newly independent countries were able to come to the table and assert their interests in international copyright laws. The Protocol had an expanded understanding of education and included distance learning, adult education and literacy programmes, but despite its ground-breaking status, the Stockholm Protocol never became part of the Berne Convention due to developed countries’ refusal to sign it.”

From my reading of the history of the Stockholm Protocol and based on what Sumathi and I write in our book, the Stockholm Protocol did become part of the Berne Convention in 1967. The Berne Convention like many other international instruments work on an international consensus which means if any one party votes against the instrument it gets torpedoed. In the case of the Stockholm Protocol the dilemma for the UK was that if they torpedoed the Protocol, countries like India would have walked out of the Berne Convention – hence the British chose to abstain from the vote rather than vote against the Protocol and thus the Protocol came into effect. The British had other cards up their sleeves. India however never deposited the instrument signaling that it intended to take advantage of the reservations offered by the Protocol. By, 1971, the Paris Revision of the Berne Convention deleted the Protocol and inserted an Appendix which provided for compulsory licenses, which provisions were then inserted into Indian copyright law in 1984. If Lawrence had traced this history accurately he would have been forced to reconcile the tension between the compulsory licensing provisions in Indian law that sought to tackle the issue of access for instructional purposes through CLs, with the exception for instructional purposes in Section 52(1)(i). Unfortunately, since he misses the 1971 Paris Revision the sequence of events falls into disarray.

5. Why frame the Indian debate in the language of the A2K movement?

Throughout his article, Lawrence tries to fit the DU photocopy case in the language of the A2K movement. This movement roughly began in 2004 when some American and European academics started questioning the prevalent model of IP protection and stressed on the need to look at the implication of such a model for access to knowledge. The A2K movement has grown since then and has certainly challenged prevalent social norms on IP ownership and user rights. I am however surprised at this attempt to try and fit in the DU photocopy case into this relatively young movement when India has a fabulously ancient history of trying to ensure copyright didn’t become an impediment to access knowledge. Take for example Prof. Bentley’s superb article in the Chicago Kent Review on how there was a tussle between British publishers and Indian administrators over the scope of translation rights when the Imperial Copyright Act, 1911 was being extended to India. Similarly, in the fifties, Section 52(i) (which was at dispute in the DU photocopy case) was incorporated into Indian law by the Joint Parliamentary Committee because parliamentarian wanted to balance India’s education with the law. Go a bit further and the fantastic negotiating strategy by Justice Chagla and then Registrar of Copyrights Krishnamurthy reaped rich dividends in the form of the Stockholm Protocol, 1967. We document some of this debate in Chapter 5 of our book. The simple point that I seek to make is that the Indian intellectual debate on balancing education and copyright precedes the A2K movement by several decades. Why then should the Indian debate pigeonhole itself into Western scholarship on the A2K movement?

6. Ignoring the British role in influencing Indian copyright law

 At different points in the debate, Lawrence tends to discuss Indian copyright law in comparison with American copyright law. At one point, he talks about how Indian courts rejected American standards of copyright law and later he discusses how American aid in books under the PL-480 program posed a threat to the Indian publishing industry. True as this may be, the fact of the matter remains that the biggest threat to Indian copyright law was the UK because the US never joined the Berne Convention till the 80s. It was the British who were trying to pressurize the Indian government on the Stockholm Protocol since the British publishers had huge business interest in the Indian market for textbook. Very often Indian scholars simply ignore this fact preferring to frame Indian copyright law debates in opposition to the US because the Americans put the most pressure on India during TRIPS. It should however be noted that the American were outliers when it came to international copyright law and that was precisely the reason they pushed for the creation of the Universal Copyright Convention (UCC) rather than join the Berne Convention post World War II.