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Delhi University Case on Photocopy

-By Piyush Joshi, Sr. Principal Associate, Delhi Office

Major publishers like Oxford University Press, Cambridge University Press, Taylor & Francis Group, U.K and Taylor & Francis Books India Pvt. Ltd. lodged a case against University of Delhi and a small-scale photocopy service “Rameshwari Photocopy shop” for the relief of permanent injunction restraining the two from selling to students course packs based on syllabi prescribed by the University which had extracts from books published by the publishers who initiated the litigation.

This has been one of the most keenly watched litigations in the area of copyright law. The litigation was initiated by the publishers before the Delhi High Court in the year 2012, alleging violation of rights under copyright law and on September 16, 2016, it was ruled in favour of the University and the photocopy service, clearing that no copyright infringement was done in the activities questioned by the publishers. This judgment is considered as a landmark without any doubt for three reasons - firstly how the Court has tried to hit a balance within the copyright system, secondly how the Court has interpreted the ‘educational’ exception under section 52 of the Copyright Act and thirdly that copyright is not a natural right.

Balance Within the Copyright System

The way the Court has underlined that copyright system is not just about copyright holders’ rights, but also users’ rights is the most welcoming aspect of the judgment. The court has highlighted that the rights of a potential beneficiaries of the exception provisions under the copyright law need to be understood using the same rules used for understanding the rights of the copyright owners.  In other words,  the scope of rights conferred on copyright holders need to be treated equally to maintain a balance between the interests of copyright owners and the broader public interest in getting access to copyrighted works.

Section 52

The Court's interpretation of Section 52 of the Copyright Act forms a vital part of the decision. Section 52 lists out certain acts that are not to be considered as infringement of copyright. The Court accepted the contention of DU that the acts under Section 52 are not to viewed as a proviso or exception to Section 51 and that making of course packs fall under Section 52(1)(i). Section 52(1)(i) states that the reproduction of a work by a “teacher/ pupil during instruction” would not constitute infringement. The question was whether the interpretation of this section was limited to an individual teacher and an individual pupil or whether it would extend to an institution and its students. The Court unambiguously held that it cannot be restricted especially when considering the societal realities. Education in India has for long been institutionalized and therefore, the law cannot and should not be interpreted in such a fashion that it does not reflect the realities of our education system. The second main contention was with respect to the interpretation of the term “course of instruction” where the court held that the legislature specifically chose to use the word instruction rather than lecture, and therefore, the interpretation of the term “instruction” cannot be limited to that of lecture. The Court also noted that a student issuing a book from the DU library and copying the same, whether by hand or by photocopying for her private or personal use would be protected under fair dealing. Therefore, it was illogical to mention that if the Delhi University did the exact same act as a direct result of its resource constraints, then the action of DU would constitute infringement and not be protected under fair dealing.  Similarly, the Court also noted that if a student took photographs of pages of a textbook from the DU library on his cellphone and then proceeded to print the same, that would be protected under fair dealing as it is merely an advancement in technology of copying by hand or photocopying.

The Court also stated that it was irrelevant whether DU was making the course packs by itself or had licensed it to a contractor. It was irrelevant whose hands did the photocopying and the making of the coursepacks, whether it is individual students, the educational institutions or a licensee such as Rameshwari as long as the act done was covered under section 52. In addition to that, the Court also stated that Rameshwari was not a competitor of the publishers, as they were only making compilations of small extracts of prescribed textbooks for the students. If Rameshwari was stopped from doing so, the students would have to resort to sitting in the library and copying out the pages by hand. Therefore, the Court stated that it was unfair to expect students to eschew the comfort provided by modern technology and to regress to the studying practices of an ancient era.

Copyright not a natural right

Finally, Delhi High Court perfectly captured this aspect of balance stating “Copyright, 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". It was thus bracing to see the court reaffirm that all the rights under the copyright regime are creations of the statute and copyright is not a natural right.

Viewing all these factors, this Delhi High Court judgment has clearly identified the socio-economic realties of India. The court held that the actions of Delhi University and Rameshwari did not amount to infringement and if this judgment is correctly implemented then it has the possibility of ending the trend of millions of children dropping out of schools and colleges due to financial burdens.

This path breaking decision has been hailed as a huge victory for universities, teachers, students per se and for the right to “access of knowledge”.  Thus, this verdict breathes meaning and life into the Right of Education in India, which is now recognized as a Constitutionally guaranteed fundamental right of all the citizens, by the Parliament of India with effect from 2002.

Probable Drawbacks:

Though this judgment is extra-ordinary in many ways, it has probably not adequately analysed the concept of ‘commercialization’ by the Photocopying agency (“Rameshwari Photocopy Shop”), for it could lead to a trend of photocopying other valuable materials like the Self Improvement Books, etc., which can also be considered as ‘course material’ in a Teacher-Pupil relationship, even though it may not be strictly academic in nature.  Further, the term “instructions” is not limited to a mere classroom instruction in an academic school. It can also be obtained outside the classroom, in say, a conference, etc. This way, the Hon’ble Court has probably licensed photocopying of all such material where it is remotely associated with education. This may not be the right approach, certainly when ‘education’ is supposed to continue even after the formal schooling gets over.

Secondly, the essence of the demand of publishers that the owners of copyright be compensated in some way for the reproduction and repeated use of their books, has perhaps been ignored.  Apparently, this demand was fair and consistent with the general principles of copyright law. Further, one of the guidelines of the Berne Convention also says that where a copyright owner may seriously suffer a loss of profit, the law should provide him with some compensation.