Comment: DU Photocopying Case

Case: The Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Ors. [DU photocopying case]

Coram:                                   

Hon’ble Mr. Justice Pradeep Nandralog

Hon’ble Mr. Justice Yogesh Khanna

Plaintiffs & Appellants:

(i) Oxford University Press; (ii) Cambridge University Press, United Kingdom; (iii) Cambridge University Press India Pvt. Ltd.; (iv) Taylor and Francis Group UK; (v) Taylor & Francis Books India Pvt. Ltd.

Defendants & Respondents:

(i)Rameshwari Photocopy Service; (ii) Delhi School of Economics (iii) Association of Students for Equitable Access to Knowledge (ASEAK); (iv) Society for Promoting Educational Access and Knowledge (SPEAK).

Facts:

A complaint was filed against a photocopy shop and Delhi School of Economics. The first defendant had a shop licensed to it within the precincts of the Delhi School of Economics (University of Delhi). Despite an initial denial by the University of Delhi, the final picture which emerged was that the professors teaching in the Delhi School of Economics had sanctioned preparation of course packs and Rameshwari Photocopy Services had been entrusted with the task of photocopying the pages from the books published by the plaintiffs, and binding the same thereafter. The average price of the book was INR 2542 and the average percentage of entire book that was copied was equivalent to 8.81 percent. Rameshwari Photocopy  Services charged 40/50 paisa per page for selling the course pack..

Apart from the offending course packs, the learned Local Commissioner who visited the premises on August 18, 2012 found eight books photocopied back to back. There were four back to back copies of one book, three photocopies of another book, two of the third and one each of the other five. The Court then issued an interim stay against the Rameshwari Photocopy Services in October 2012.

Issues Raised

  1. Whether sec 52 (1)(i) of the Copyright Act is applicable in the present case or rather it involves sec 52(1)(h) for the preparation of course packs by the defendants?
  2. Whether the course of instruction in sec 52(1)(i) of Copyright Act, 1957 implies reproduction in the course of preparation of instruction as well?
  3. Whether the preparation of the course packs and its distribution by the University of Delhi and Rameshwari Photocopy Services and others amounted to infringement of the plaintiffs’ copyright?

Contentions Of Plaintiffs

(i) That the inclusion of such vast number of pages of its publications by Rameshwari Photocopy Services, under the authority of the Delhi School of Economics, amounts to copyright infringement.

(ii) That the course packs, which contain no additional material apart from photocopies of its copyrighted publications, were being used like textbooks and therefore, the compilations prepared were inflicting huge loss to the plaintiffs.

(iii) That Sec 52(1)(i) of the Act is not applicable since reproduction by Rameshwari Photocopy Services, with the aid of Delhi School of Economics, cannot be classified as reproduction by a teacher or a pupil in the course of instruction.

(iv) That the reproduction in the manner carried out by Rameshwari Photocopy Services if held falling within the ambit of Section 52(1)(i) would render Section 52(1)(h) superfluous.

Arguments from the Side of Plaintiffs:

  • The plaintiffs have pleaded that Section 52(1)(i) only covered reproduction in the course of instruction and not in the course of preparation for instruction.
  • According to the plaintiffs, reproduction by Rameshwari Photocopy Services falls under the ambit of Sec 52(1)(h) and would be limited to two passages from works by the same author published by the same publisher during any five year period as provided under the sub-Section.
  • Further, they pleaded that defendants did not obtain any license from the Indian Reprographic Rights Organization (IRRO) in order to reproduce extracts from the books published by academic publishers.

Arguments from the side of Defendants:

  • Defendants contended that the students cannot afford to purchase all the books, extracts of which were stated in the syllabi prepared by the Delhi School of Economics. Hence, the notes were provided.
  • Further pleaded that Sec 52(1)(i) of the Copyright Act, 1957 permits students and educational institutions to copy portions from any work for research and educational purpose. No limitation on the quantum of reproduction under Section 52(1)(i) has been provided under the Copyright Act, 1957 and because Section 52(1)(i) covers reproduction for educational purposes, unlimited photocopying would be permitted.
  • Relying upon the dictionary meaning of the word ‘instruction’ and definition of the term ‘lecture’ in Section 2(n) of the Copyright Act, 1957, ASEAK pleaded that the term ‘in the course of instruction’ must have a wider import than mere classroom teaching and would include all instruction given by teachers to the pupils during the academic session.

Decision of the High Court of Delhi

There was no infringement of copyright from the side of defendants as the conduct of defendants is exempted under the principle of fair dealing i.e. sec 52(1)(i) of the Indian Copyright Act, 1957.

Summary of the Judgment:

  1. Whether sec 52 (1)(i) of the Copyright Act is applicable in the present case or rather it involves sec 52(1)(h) for the preparation of course packs by the defendants?

The learned Single Judge opined that clause (h) of sec 52 (1)(i) would not be applicable to the preparation of course packs by Rameshwari Photocopying Services. Since, sect 52(1)(h) applies only when there is : (i) ‘publication’ of a collection, and (ii) comprising mostly of non-copyrighted material.

The term ‘publication’ ought to be interpreted as the preparation and issuance of material for public sale. It does not include the photocopying and issuing of work to students for purposes of teaching.

The term ‘reproduction’ has not been defined in the Copyright Act, 1957. A conjoined reading of sec 14(a)(i), sec 51(a)(i) and sec 2(m) makes it evident that infringement of a copyright would be complete upon the reproduction of the work and would not require distribution of the reproductions. As per sec 14(a)(ii) and (b), facilitation of infringement or dealing in infringing copies of copyrighted materials constitute infringement only when such dealing or facilitation is carried out with a commercial intent.

  • Whether the course of instruction in sec 52(1)(i) of Copyright Act, 1957 covers reproduction in the course of preparation of instruction as well?

Relying upon Explanation (d) to Section 32, wherein the phrase ‘purposes of teaching, research and scholarship’ has been defined as (i) purposes of instructional activity at all levels in educational institutions, including Schools, Colleges, Universities and tutorial institutions; and (ii) purposes of all other types of organized educational activity’

In State of Maharashtra Vs. Dr. Praful B. Desai,[1] Supreme Court held that statutes must be interpreted keeping in mind existing societal realities. Clause (i) of sec 52(1) only used the terms ‘teacher’ and ‘pupil’, given that education in the country had long been institutionalized, the given section would not be limited to reproduction in the course of individualized teacher-student interactions and would also apply to reproduction by educational institutions in the course of instruction as well.

  • Whether the preparation and distribution of the course packs by the University of Delhi and Rameshwari Photocopy Services and others amounted to infringement of the plaintiffs’ copyright?

The learned single Judge opined that as photocopying of copyrighted books by individual students, acting distinctly, would be fair dealing under Sec 52(1)(a) of the Act, the university making multiple copies of copyrighted material for its students in the course of instruction while photocopying could not be deemed to be infringing copyright. Since, the effect of both the two actions were the same. The learned single Judge opined that the price being charged by Rameshwari Photocopy Services for its services was not competitive with the price being charged by the plaintiffs for their books and thus, it could not be said that Rameshwari Photocopy Services was functioning commercially.

Critical Analysis of the Judgment:

The purpose of the copyright law is to promote the progress of science and useful arts. It is designed to stimulate creativity and progress in the arts for the intellectual enrichment of the public. Fair dealing doctrine, applied in the courts, is absolutely necessary to fulfil that very purpose.

A fair concern, however, has been invoked by the Plaintiffs i.e. academic institutions are the only market for academic books published by academic publishers, and if unobstructed reproduction of these books is permitted, the academic publishing business would suffer irreparable loss.

The ultimate goal of copyright is to inflate public knowledge and understanding, which copyright seeks to accomplish by granting potential creators exclusive control over copying of their works, thereby providing them a financial incentive to create informative, and intellectually enriching works for public consumption.

Sec 52(1)(i) of the Act provides the exemption without placing any limits on the extent of reproduction. A background history of cases will depict how many copyright infringers had first tried to find shelter in sec 52(1)(i) of the Indian Copyright Act, 1957, the fact of it being so broad is not hidden from anyone. Many even did succeed in that attempt.

A utilitarian approach taken by the Court in the present case which seeks to promote creation and dissemination of knowledge in society by showing its inclination towards the welfare of society at large rather than the interests of the creators may sound right for the time being but it may drag down the wings of the artists in future. Mark Rose in the treatise ‘Authors and Owners: The invention of Copyright’ published by Harvard University Press, in the year 1993 raised a question: “Why, then, don’t we abandon copyright as an archaic and cumbersome system?”

The concept of copyright gives the creator a degree of personality, a belief of singularity, a sense of pride, a satisfaction that he’s not a liability rather he has provided something original to this world. Copyright is a commercial right, intended to protect the ability of authors to profit from the exclusive right to merchandise their own work. Hence, if this country has provided a copyright regime then it must be exercised fairly.

Although Copyright Law is a statute, it must not be forgotten that the stem has been cut out from the natural property right itself. A person is proprietor of the fruits of his/her labour. And the state has the duty to respect and enforce that right. Rameshwari photocopy could have used price discrimination method and provided the photocopy only to the deserved students. No such efforts was taken. Apart from the offending course packs, the learned Local Commissioner who visited the premises on August 18, 2012 found eight books photocopied back to back. There were four back to back copies of one book, three photocopies of another book, two of the third and one each of the other five.

The unlimited grant for unlimited duration was not only unreasonable but also injurious to promotion of science and useful Arts. The right should be treated as an instrument of public policy created for the encouragement of creation and dissemination of knowledge.

The rights conferred under Sec 52 of the Act must be limited to a person exercising a privilege with respect to the work of another, and the privilege must be exercised in a way that does not jeopardise the right or the interest of the owner.

Cases Cited before the Court:

  • Princeton   University   Press   Vs.   Michigan   Document   Services   Inc.,  2012 SCC 37;
  • Province   of   Alberta   Vs.   Canadian   Copyright   Licensing   Agency  and 758 F. Supp. 1522;
  • Basic   Books   Inc.   Vs.  Kinko s Graphics Corporation;
  • (2001) Chancery 143 Hyde   Park   Residence   Ltd.   Vs.   Yelland;
  • (2007) 140 DLT 758 Time Warner Entertainment Company, L.P Vs. RPG Netcom;
  • (2008) 13 SCC 30 Entertainment Network (India) Ltd. Vs. Super Cassettes Industries Ltd.;
  • (2016) 2 SCC 521 Krishika Lulla Vs. Shyam Vithalrao Devkatta;
  • 1925 Ch. 383 British Oxygen Company Ltd. Vs. Liquid Air Ltd.;
  • (2009) 3 Arb LR 486 Continental Telepower Industries Ltd. Vs. Union of India;
  • (1995) 4 SCC 572 Nand Kishore Mehra Vs. Sushil Mehra;
  • AIR 1961 SC 1170 J.K. Cotton Spinning & Weaving Mills Cp. Ltd. Vs. State of U.P;
  • (2014) 8 SCC 319 Commercial Tax Officer Vs. Binani Cements Ltd.;
  • 1981 Supp SCC 87 S.P. Gupta Vs. President of India;
  • (2003) 4 SCC 601 State of Maharashtra Vs. Dr. Praful B. Desai;
  • 420 U.S. 376 Williams & Wilkins Co. Vs. U.S

[1] (2003) 4 SCC 601.


Author: Ishika Gupta from ICFAI University, Dehradun.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s