There have been two pieces on this blog about Carl Malamud and Andrew Lynn’s JNU data depot project and whether it violates Indian copyright law. While Dr. Arul George Scaria argued that it doesn’t, and argued that section 52(1)(a)(i) of the Copyright Act, 1957 would protect this project, the indefatigable Prashant Reddy argued otherwise. The debate needs more hard facts on how the data depot acquired the data to decide this way or that, but I would think, making certain assumptions based on the available material, Dr. Scaria is right – JNU’s data depot is not infringement of copyright in India. Dr. Scaria has dealt with the policy arguments, and has made a passionate case for its legality. I will attempt to address some textual arguments in favour of the depot, and, hopefully, provide an answer to Reddy’s objection.
There are three steps in this data depot:
- A computer program, presumably, crawls databases that JNU has legal access to, and downloads papers on to the hard disks of the data depot.
- Researchers run TDM programs on this data, without actually reading any of the text.
- Researchers use results of the TDM to draw results for their research.
It is clear that (ii) and (iii) involve no copyright issues. Under section 51 of the Act, it is only infringement to do something that the owner of the copyright is exclusively given the right to do. The owner of the copyright is not given an exclusive right to run TDM programs on his works, or to write research papers based on his works. So, the only issue can arise from (i).
Section 14(a) lists the rights available to the owner of a copyright in a literary work. The relevant right in this case is the right, in sub-clause (i) to “reproduce the work in any material form including the storing of it in any medium by electronic means”. The structure of this sub-clause, and the use of “including” suggests that the words “storing of…” are a subset of “reproduce the work in any material form”. The words “storing of…” only clarify what is already contained in the first part, and do not expand it. Hence, the term “material form” will qualify even storing by electronic means.
The Madras High Court in Daily Calendar Bureau v United Concern (AIR 1967 Mad 381) has held that “material form” would mean a “tangible form”. The judgment even quotes with approval the definition of “reproduce” from the Shorter Oxford Dictionary which states, “The action or process of building again before the mind in the same form.” In the context of electronic storage, it must mean that the work, being the paper, must be accessible to be read, not merely mined, for only a readable copy would be a “reproduction” of the work. The data depot does not allow reading of the papers. The article in Nature clarifies that researchers can only run TDM programs on the papers, but not access the papers themselves. While this might amount to “storing… by electronic means”, it will not amount to storing in “material form”, as argued above.
Even if this argument fails, section 52(1)(a)(i), as noted by Dr. Scaria, would apply. Reddy argues that this clause applies only to “personal” or “private” research and not to a depot being made available for the “public”. This argument is flawed because “personal” and “private” qualify the use of the works themselves, and not the making available of the works. The works are not “used” until there are actually trawled by TDM programs for research.
Our old librarians manually trawled journals and created index cards that researchers used for finding papers that were relevant to their research. Even in public libraries, that would not amount to “public” use, because the librarian is not “using” the work. The data depot is one step removed from even an index card. It allows the researcher to run data mining programs on the papers – it does not even allow access to the papers. Malamud or JNU are only facilitators of the research and are not researchers themselves. As long as the research in steps (ii) or (iii) is “private” or “personal”, the fact that step (i) creates a publicly accessible data depot does not make a difference.
In the Delhi University Photocopying case, the Delhi High Court chose a wider reading of the exceptions under section 52 in order to promote academic interests. I believe similar considerations must apply to the data depot as well.
Image from here