Copyright-The exception of "educational use"

Once again, India is on the center stage of a global debate on Intellectual property rights (IPR). In an action brought by some of the leading international publishers (collectively referred to as plaintiffs), seeking a relief of permanent injunction, thereby restraining Rameshwari Photocopy Service (defendant No.1) and the University of Delhi (defendant No.2) from infringing the copyright of the plaintiffs in their publications by photocopying, reproduction and distribution of copies of plaintiffs’ publications on a large scale and circulating the same and by sale of unauthorized compilations of substantial extracts from the plaintiffs’ publications by compiling them into course packs/ anthologies for sale, the learned Judge of the Delhi High Court explicitly stated that the educational exception under Section 52(1) (i) of the of the Copyright Act, 1957 (hereinafter referred to as “the Act”), should be construed widely and further that the exception covers all kinds of educational copying including copying for the purpose of preparatory work towards a class, etc.

Facts

It was the case of the plaintiffs that at least four course packs were being sold by defendant No.1 based on the syllabi issued by the defendant No.2 and that the faculty teaching at the defendant No.2 is directly encouraging and recommending the students to purchase these course packs instead of legitimate copies of plaintiffs’ publications containing photocopies of portions of plaintiffs’ publication varying from 6 to 65 pages. The plaintiffs further stated that the libraries of the defendant No.2 are issuing books published by the plaintiffs stocked in the said libraries to the defendant No.1 for photocopying to prepare the said course packs.

On 14th August, 2012 when summons of the suit and notice of the application for interim relief were issued, a Commissioner was appointed by the Court to visit the premises of the defendant no.1 without prior notice and to make an inventory of all the infringing and pirated copies of the plaintiffs publication found and to seize and seal the same, who reported that the shop of defendant No.1 had the photocopy of one of the books published by the plaintiff (Cambridge University Press) in the form of loose sheets, 45 course packs containing photocopied articles comprising of 1 to 22 copies of varying number of pages of the books of the plaintiffs were found and 8 books were found being photocopied cover to cover.

Thereafter, vide order dated 17th October, 2012, taking into consideration the plea in the written statement of the defendant No.2, of having not sanctioned photocopying by the defendant No.1 of the books and recording the statement of the counsel for the defendant No.2 that whatever had happened was under a bona fide impression, the defendant No.1 was restrained from making, selling course packs / re-producing the plaintiffs‘ publications or substantial portions thereof by compiling the same either in a book form or in a course pack, till the final disposal of the application for interim relief.

Arguments Forwarded

Plaintiffs

• The plaintiffs collectively urged that the defendant No.2 has institutionalized infringement by prescribing chapters from the plaintiffs’ publications as part of its curriculum and permitting photocopy of the said chapters and sale thereof as course packs;

• The objective of the plaintiffs is not to stop the students from photocopying but to stop the systematic photocopying of their publications;

• The profit motive is evident from the rate of reproduction being charged,

• which is higher than the prevalent market rate;

• The defense of Sections 52(1)(i) of the Act is not applicable as the reproduction of the works of the plaintiffs is not by a teacher or pupil and not in the course of instruction;

• By selling photocopies of chapters from the books of the plaintiffs in the form of compilation, the defendants are competing with the plaintiffs;

• If reproduction of copyrighted works as is being carried out by the defendants are to be covered by Section 52(1)(i) of the Act, there would have been no need for Section 52(1)(h) of the Act;

• If the defendant No.2 were to take an Indian Reprographic Rights Organization (IRRO) license, the cost to the students would not be much more than is being already paid to the defendant No.1;

• The publishers invest in publishing the books and if the copyright of the publishers is not protected, it will sound a death knell for the publication business;

• India is bound by the Berne Convention for the Protection of Literary and Artistic Works and TRIPS Agreement, unless Section 52 is found to be providing to the contrary;

• The defendants on the one hand are infringing copyright of the plaintiffs and on the other hand also depriving the plaintiffs of the IRRO license fee;

• Once an efficient mechanism is in place to deal with the situation as has arisen, the same should be adopted;

• It matters not whether the author or the publisher intended the book to be for instructional use;

• The copying and reproduction being done by the defendants is not in the course of instruction but for the purpose of instruction;

• If such copying is allowed, there would be no market left for the book(s);

• Defendant No.2 also has a commercial interest inasmuch as in lieu of permitting the defendant No.1 to so photocopy the books;

• Relief cannot be denied to the plaintiffs on the basis of public interest‘ where infringement of copyright has taken place;

• The matter has to be looked at not with a short sight but with a long term impact as allowing the photocopying as is going on to continue would

• adversely impact the publishing industry;

• If injunction would be refused there would be no incentive for new literary work as even if the academicians continue to write for themselves, the publishers would not be willing to publish;

• That copyright would become useless if the entire work were allowed to be copied under Section 52(1)(i) of the Act.

Defendants

Defendant No.1 i.e. Rameshwari Photocopy Service

• The activities carried on by it amount to fair use of the works within the meaning of Sections 52(1) (a) & (h) of the Act;

• As per the terms of its license, the defendant No.1 is required to provide 3000 photocopies per month to DSE, an institute of the defendant No.2, free of cost and to charge only the prescribed rate for the photocopy service meted out to others;

• Defendant No.2 recommends the syllabus for each academic year along with suggested reading materials sold at a high price, often beyond the reach of the students;

• The syllabus of the defendant No.2 does not recommend the entire publication but only certain extracts from the same;

• The students would be reluctant to buy the entire publication just for reading a particular chapter/extract therein;

• To ease the financial burden on students, majority of the titles prescribed in the syllabi are housed in the library of the defendant No.2 which provides such expensive books for reference of students;

• The services of the defendant No.1 are availed by the students and faculty to photocopy the relevant extracts from the books, articles and journals at the nominal / prescribed rate for use for educational purpose and reference only;

• In view of the limited number of original books stored in the library, the faculty of DSE has compiled various master copies of books, articles and

• journals, which are then used for photocopying by the defendant No.1 in order to save the original work from being damaged;

• Such course packs are used by teachers and students in the course of academic instructions and for research purposes;

• In fact the License Deed executed between the defendant No.2 and the defendant No.1 expressly provides that master copy of each article or chapter of a book for reading is to be provided by the department concerned, so that the master copy could be given for Xeroxing, saving the original document;

• Defendant No.1 is Xeroxing the master copy at the instructions of and on the terms imposed by the defendant No.2;

• Defendant No.1 is not commercially exploiting the author‘s copyright but is giving copies to students at nominal rates to aid their education.



Defendant No.2 i.e. University of Delhi

• The question, though relating to copyright law, has to be judged in the light of the right to access to knowledge;

• Access to education is a cherished constitutional value and includes within it access for students to books in library and right to research and to use all materials available;

• World over Universities permit students to copy limited pages from any work for use in research and for use in the classroom by a student or teacher and this is recognized by Sections 52(1)(a) & (i) of the Act also;

• Individual teacher and student may either read books prescribed in the syllabus and curriculum offered by the defendant No.2 University in the library or borrow the books and make photocopy of the relevant chapter and pages;

• This service of copying certain pages for educational purpose is necessary because purchasing individual books is expensive and several of the books are also out of print or not available in India;

• The facility of photocopying limited portions of books for educational and research purposes could have been provided within the library if the

• University had adequate space, resources and manpower at its disposal;

• Instead the defendant No.2 has granted the facility of photocopying to defendant No.1 keeping the interest of the students in mind;

• The Act is a piece of welfare Legislation and the rights of authors and owners are to be balanced with the competing interest of the society;

• The defendant No.2 is an instrumentality and / or agency of the state imparting education to achieve the constitutional goals;

• The plaintiffs have not shown assignments made by authors and owners of copyright in favour of the plaintiffs;

• The suit is also barred by Section 52(1)(zb) of the Act excluding from the purview of infringement any reproduction, adaptation, issuance of copies to facilitate persons with disabilities to access such works for educational purposes;

• The defendant No.2 is nowhere photocopying for its own purpose nor does anyone to whom books are issued by the library of the defendant No.2 discloses the purpose of taking the said books;

• The defendant No.2 is not gaining anything out of such reproduction;

• The use of reproduced copyrighted books by student was a “reasonable educational need” and should not be treated as infringement;

• The photocopy of copyrighted books at the university’s campus was for preparation of their course and not meant for commercial exploitation;

• The defendant No.2 is not required to go to IRRO as it is exercising the rights recognized in Section 52 and only those who are exploiting the copyright are required to go to IRRO;

• Abstraction of work is not the same as reproduction of work;

• Photocopying in entirety of school books is permitted but the need therefor does not arise because they are subsidized;

• It matters not whether the full book is photocopied or only a part of the book is photocopied as long as the purpose remains educational;

• Section 52(1)(i) of the Act takes within its ambit reproduction of the entire work because it is for non-commercial purposes;

Defendant No.3 i.e. Association of Students’ for Equitable Access to Knowledge (ASEAK) (impleaded during the course of proceedings)

• That the instruction begins when the academic session commences;

• That once any part of any copyrighted work is included in the syllabus of the University, Section 52(1)(i) of the Act applies;

• That Section 2(n) defines lecture‘ as including addresses, speeches and sermons;

• That had the intention of the Legislature been to confine Section 52(1)(i) of the Act to lectures as is the case of the plaintiffs, the word lecture‘ would have been used and not the word instruction;

• That Section 52(1)(i) of the Act is not limited to classroom education;

• That the defendant No.1 is reproducing and not publishing;

• That if University itself is entitled to make the course packs, the fact that it is doing through an agent should not make a difference.

Defendant No.4 i.e. Society for Promoting Educational Access and Knowledge (SPEAK) (impleaded during the course of proceedings)

• The course packs carry an independent user right and do not affect the need for books;

• Out of 52 authors whose books are cited by the plaintiffs, 33 have given their no objection;

• The ratio of the material which is picked for use in the course pack vis-a-vis the entire book is miniscule;

• If a student wants to do research in copyrighted material he cannot be charged;

• There can be no general principle in this regard and it has to be judged on a case to case basis as to whether there is any commercial impact from the action impugned;

• The test to be applied is, whether by the impugned action the book gets substituted; that if it does not, then there cannot be any violation;

• No excerpt can be enough to replace a book, this Court has to balance the competing interests of copyright owners and students;

• Serious users of the books will not rely on course packs and therefore no serious commercial interest is hit and the miniscule commercial interest which is hit is within the permitted rights;

• A benevolent provision cannot be given a restrictive interpretation;

Judgment

Reviewing the scope of the Act, the Court observed that unless there is an infringement of copyright within the meaning of the Act, owner of copyright is not entitled to sue. The Court further made the observation that the Act seeks to maintain a balance between the interest of the owner of copyright in protecting his works on the one hand and interest of the public to have access to the works, on the other. Section 52(1) (h) of the Act does not constitute as infringement the publication in a collection, mainly composed of non-copyrighted matter, bona fide intended for instructional use, of short passages from copyrighted work provided that not more than two such passages from the copyright work are so included. Referring to multiple judicial precedents and applying the tests as laid down by the Courts therein including:

• Integral part of continuous flow;

• Connected relation;

• Incidental;

• Casual relationship;

• During (in the course of time, as time goes by);

• While doing;

• Continuous progress from one point to the next in time and space; and

• In the path in which anything moves;

The Court resultantly observed that reproduction of any copyrighted work by the teacher for the purpose of imparting instruction to the pupil as prescribed in the syllabus during the academic year would not be within the meaning of Section 52(1) (i) of the Act.

In addition to above, the Court further observed that Copyright is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public, and is thus not an inevitable, diving, or natural right that confers on authors the absolute ownership of their creations.

The Court thus opined that the action of the defendant No.2 of making a master photocopy of the relevant portions of the books of the plaintiffs purchased by the defendant No.2 and kept in its library and making further photocopies out of the said master copy and distributing the same to the students does not constitute infringement of copyright in the said books under the Act.

The Court also observed that imparting of education by defendant No.2 university is heavily subsidized and the students can never be expected to buy all the books, different portions whereof are prescribed as suggested reading and can never be said to be the potential customers of the plaintiffs. What is permissible for a small number of students cannot be viewed differently, merely because the number of students is larger, the same would not convert what is not an infringement into an infringement. The Indian Reprographic Rights Organization (IRRO) does not come into play since the educational exception under the Act covers the alleged acts.

While interpreting the international covenants, the Court observed that both the Berne Convention and the TRIPS Agreement left it to the wisdom of the legislators of the member / privy countries to decide what is justified for the purpose and what would unreasonably prejudice the interest of the author. The Indian legislature in terms of the court has not deemed it essential to impose any limitation on the extent of reproduction and has not specifically stated what will unreasonably prejudice the legitimate interest of the author, therefore the Court cannot impose any such restrictions itself.

Therefore, in finality, the Court concluded that the actions of the defendants do not amount to infringement of copyright of the plaintiffs.

Analysis

India being a signatory to the Universal Declaration of Human Rights, 1948 (UDHR), has a strong natural rights tilt. This is evident from the usage of the phrases “inherent”, “inalienable” in its enactments. Clause 2 of the Article 27 of the UDHR states, “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” Upon perusal of the aforementioned lines, it is evident that the UDHR considers copyright as a natural right, therefore there is no reason to deny the contention that India should keep copyright at the same pedestal.

It is perhaps owing to the aforementioned reason that the Judgment passed by the Delhi High Court appears to be striking and limited in its scope. Moreover, it does not address how the authors and publishers would be protected especially in circumstances where the academic institutions allow reproduction of an entire text for educational purposes. The Court unfortunately has scrutinized the matter with a very shortsighted approach as the move may have adverse ramifications upon the publishing industry.

Having said that, it is invigorating to see that the Indian Courts are still unwilling to be swayed by such tall claims and have been steadfast in fairly balancing the rights of consumers with those of creators. The Delhi High Court through this ruling restored whatever public interest has been recently corroded primarily owing to lobbying and vested interests. The Court has given more preference to Education over Copyright, which in itself benefits the education scenario in the country like India, where illiteracy is still one of the major causes of concern.

Copyright law in general has always laid emphasis on promoting creativity by allowing sufficient protection on one hand and at the same time promoting creative activity and dissemination of information on the other, through its various exemptions and doctrines. The High Court decision in that sense has brought further clarity to the role of the Act by balancing the rights of the

consumer and the copyright holder in general. The Judgment for now has evidenced that India shall not blindly act in accordance with the global trends by siding with private copyright demands. It is a landmark verdict likely to have a wide-reaching impact on Copyright laws in India.

It is however to be seen how the Division Bench (DB) adjudicates on the question of laws and facts arising in this dispute on the appeal raised by the International Publishers, who have recently approached the Delhi High Court, challenging the verdict of the Single Judge.

Latest Developments

Challenging the aforementioned impugned Judgment dated 16 September 2016 in I.A. No. 14632/2012 in C.S. (OS) No.2439/2012, the International Publishers recently filed an appeal (RFA (OS) No.81/2016) before the DB of the Delhi High Court, while simultaneously seeking a stay on the operation of directions given by the Single Judge. In the fresh grounds of appeal brought before the DB in the Appeal, the counsels for the International Publishers have inter alia raised the following grounds:

• Section 52(1)(i) of the Act has been wrongly interpreted as a standalone section by the Learned Single Judge.

• Section 52(1)(i) of the Act only contemplates reproduction by natural persons, and does not include within its scope a University or its Agent.

Effect of the impugned judgment would be to permit the unrestricted copying of any copyrighted work by any and all private or public educational institutions. Such interpretation shall destroy the ability of the Copyright Owners, to have any say in the reproduction, publication and sale of their copyright works in the academic and broader educational sector.

Interpretation of the Learned Single Judge runs contrary to India’s International obligations, in particular the “Three Step Test” articulated in the Berne Convention for the protection of Literary and Artistic Works

and the Agreement on Trade-Related Aspects of Intellectual Property Rights.

There was no practical need for the learned Single Judge to create an expansive interpretation of Section 52(1)(i) of the Act overriding the specific limitations contained therein to ostensibly ensure students’ access to content: there is a farm more efficient and balanced way of achieving the same result which is equitable for all the stakeholders, i.e. through the Indian Reprographic Rights Organization.

While the learned Judges patiently heard the learned counsel for the parties, who vehemently contested and forwarded their arguments before the Court, they refused to grant a restraining order or hold that the Trial Judge’s order had no legal effect. Vide its order dated October 06, 2016 the DB, admitted the matter and considering the seriousness of the issues involved in the case, accommodated the contesting parties with a short date by keeping the said matter on November 29, 2016 for final disposal. The DB also directed the respondents to maintain a record of photocopied course packs sold.

While the law will take its own course, it will be interesting to see how the DB approaches this case and to what extent shall it willingly protect private property, if at all.

Are we going to be dragged back to the Copyright Dark ages? Time will tell.