Despite being the second most populated country in the world and in a race to takeover China as the most populated country, India has got a lot of human resources. However unfortunately out of 189 countries it continues to rank 129^th of the global developmental index.[1]A number of factors are responsible for this the prime among them being educational facilities lacking in infrastructural facilities. The importance of education has been rightly expressed by the former Prime Minister of India in the following words “Education alone is the foundation on which a progressive, prosperous society can be built. We should not just seek functional literacy, but good quality education – education that is affordable, accessible, equitable- available to every boy and girl who seeks to study.’’[2] According to All India Survey on Higher Education (AISHE Report) India’s Gross Enrollment Ration (GER) in higher education for age group 18-23 years is estimated to be 27.3 for the year 2020-21, which even though is quite low is the highest ever the country has ever achieved.[3] There are a horde of problems responsible for this low enrollment the glaring among them being the cost of education which acts as an impediment for many students interested in pursuing higher education. This cost is inclusive of admission, tuition fees, commutation charges, expensive books, requirement of digitalized equipment such as laptops, accessibility to internet. The article will deal with the cost of accessing books and other study material which amounts to a whooping 20% of the total cost vis-à-vis availability/unavailability due to the implementation of the Copyright Act of 1957 (hereinafter to be called the Act).

An impactful copyright law in the developing nations should on one hand allow the free access to content for the majority while at the same time provide incentives to the creators to come up with unique content. This requires an equilibrium between the economic rights of the creator and the right of the public to have access to such creations which only a good statutory scheme can provide for. Chapter VI of the Act provides for this balance by defining infringement under Section 51 of the Act and simultaneously enumerating about40 acts ‘not amounting toinfringement’ under section 52. Copyright in the sphere of academics and research is minimally explored by Indian laws. The prime reason being that education and education related products were never really viewed as a commercial commodity in India but rather seen as a medium of imparting education. However, with the change of times, the internet has become a breeding ground for plagiarism, duplication and other acts that are an outright breach of academic and publication ethics.[4] Academics and researchers spend years conducting original research, and copyright laws ensure that their work is not plagiarized or used without their permission. Copyright laws help to protect the integrity of research by ensuring that it is not tampered with or altered in any way that could compromise its originality or accuracy. India is a signatory to many International Conventions in the field of copyright which provide freedom to the member states to specify the areas of “free uses”, or demarcate the “limitations & exceptions” or “acts not amounting to infringement”. The noteworthy among them being Berne Convention for the Protection of Literary and Artistic Works, 1886 (hereinafter, Berne Convention), the Agreement on Trade Related Aspects of Intellectual Property, 1994 (hereinafter, TRIPS), WIPO Copyright Treaty,1998 (hereinafter, WCT). 

1. ACTS NOT AMOUNTING TO INFRINGEMENT UNEDR THE INTERNATIONAL INSTRUMENTS

The Berne Convention is regarded as the oldest international treaty in the field of Copyright Law and was adopted to bring about uniformity among nations yet preserve the autonomy of the legal structure and to cater to specific problems of cultural and social nature unique to signatory parties.

Article 9(2) provides ‘It shall be up to the domestic legislations of the countries to permit the reproduction of such works in certain special cases, provided that such reproduction is not in conflict with a normal exploitation of the work and does not unreasonably undermine the legitimate interests of the author.’

Article 10 provides for certain areas where there can be free use of work:

(1) Making quotations from a work which has already been lawfully made available to the public is permissible, only if their making is compatible with fair practice, and their extent does not exceed the justified purpose. This ruling also applies to quotations from newspaper articles and periodicals in the form of press summaries

(2) It is up to the domestic legislations of the member States, and in consonance of the agreements existing or to be concluded between them, to permit the utilization for the justified  purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching. However, again such utilization should be compatible with fair practice.

(3) In case of use of works according to the preceding paragraphs, it shall be necessary to mention the source, and the name of the author, if it appears thereon.

The Berne Convention served as merely a recommendatory body and didn’t impose any mandates on the member states, with the result the signatory states continued to follow a wide range of standards in intellectual property rights. These standards served as impediments in the international tard of goods and services. The TRIPS attempted to harmonize the IPR structure by providing for the minimum standard of achievement to be followed by the member states and yet maintaining the autonomy in certain areas.[5]

Article 13 of the TRIPS States simpliciter that the member States should confine the said “ limitations or exceptions” only to certain specific special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.

The same thing is reiterated in Article 10 of the WIPO Copyright Treaty, 1996 with the liberty to the States to extend such limitations or exceptions into the digital environment.

The Articles of Berne Convention, TRIPS and WCT conclusively form a 3-step test for Limitations and Exceptions to copyright and as already deliberated these steps are:

1. Existence of certain special cases.
2. Which don’t conflict with the normal exploitation of the copyrighted material, and
3. Do not unreasonably prejudice the legitimate interests of the right holder.

These three steps guide the national legislations[6]. India being a signatory to all the above stated instruments has to keep this 3-step test in view while interpreting Section 52 of the Copyright Act.

1. DOCTRINE POF FAIR USE/DEALING IN THE NATIONAL LEGISLATIONS

Whether fair dealing is an exception to infringement or is just a part of Copyright Act has been the center of debate for a long time. Pierre N Level J, expresses that the doctrine of “fair use” shouldn’t be understood as an exception to the copyright rules or a deviation from the given principles and conception of the copyright monopoly but as an essential part of the regime, which helps in achieving the idea intended behind the Act of promoting productivity without dissolving incentive.

The fair dealing doctrine in India is stipulated in 33 clauses of Section 52 running from clauses (a) to (ac) under the title “Acts not amounting to Infringement”. All the clauses are worded differently and only one clause i.e., S.52(1)(a) uses the expression fair dealing.

The Indian Supreme Court in the landmark case of  The Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Anr[7] while interpreting Section 52(1)(i) held that Section 52 is to be given a wider interpretation and read as a substantial defence in favour of educational institutions and students. The Court dismissed the suit stating that photocopying in bulk amounted to reproduction for educational purposes and would thus not amount to infringement.

The first infringement case in U.S dates back to 1980-81. In Association of American publishers v. New York University[8] the publishers brought infringement actions against shops copying materials meant for educational use by students. The settlement made was based on the agreement in which the shop owners agreed to adhere to classroom guidelines as a limitation on fair use.

While the American Courts and federal judges struggled with the issue as whether the selling of course packs amounted to fair use or not. The Courts more often held that the creation and selling of course packs were acts falling outside the limits of fair use.[9]. The Indian Copyright Law on the other hand has a clear stand on the issue that reproduction of the copyrighted work by a teacher or pupil is permitted if done in the course of instruction meaning thereby that the creation and selling of course packs, containing the excerpts from the original sources, comes within the domain of fair use if prescribed by the teachers themselves.

The Madras High Court in Blackwood & Sons Ltd v. A. N. Parasuraman[10]while dealing with the issue of whether parody or spoof making constitutes fair dealing, the Court held that two conditions must be satisfied to constitute unfairness

1. There must exist an intention to derive profit from the usage of such work.
2. The usage must be improper or oblique in absence of which the use would be fair.

Lord Denning attempted to define fair dealing in Hubbard v. Vosper[11] where he said that fair dealing is a matter of fact and degree and should be considered on the case-to-case basis. In United states, the term ‘fair use’ is in vogue, the term tracing back its roots to the case of Folsom v. Marsh.[12] The case is famous for the four-factor test of fair dealing enshrined in Section 107 of the US Copyright Act, 1976:

• The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
•  The nature of the copyrighted work;
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• The effect of the use upon the potential market for or value of the original.

While no all non-profit educational & non-commercial uses are fair, courts are more likely to find in favor of these uses. It is to be kept in mind that fair use can only be determined by the court of law

1. INTERFACE BETWEEN EDUCATIONAL INSTITUTIONS AND COPYRIGHT LAW

Educational institutions have globally been associated with imparting knowledge, skills and values. The right to education has also been advocated for in various international conventions. Universal Declaration of Human Rights (UDHR) recognized the fact that the right to education stems from inherent human dignity. This right is a sort of empowerment right enabling the citizens to productively take part in the political systems of their respective states. The Indian Supreme Court by virtue of Constitution (Eighty-Sixth) Amendment Act, made the right to education for children in the age group of 6-14years of age a fundamental right by inserting Article 21-A in the Constitution.

A clear conflict exists on one hand in the educational materials in which the authors have a pecuniary interest. Education and copyright law comes at loggerheads because of the authors content being used in research for projects, teaching, disseminating study material and course packs to the students, assignments and writing of answers in examination, setting up of question papers.

Copyright Act while attempting to protect the author’s work has greatly reduced the potential capacity of the publishing industry resulting in small or no access to the books published outside the small national market. Therefore, the developing countries are in need of a robust restructuring of copyright rules. It is noteworthy to mention that the Appendix to the Berne Convention provides for “bulk access” to certain copyrighted educational material including that meant for educational purposes. The Appendix also provides for the scheme of compulsory licensing to limit the author’s control over his work especially the translation and reproduction rights[13]. The translation and reproduction rights are conferred on any national of the eligible country who applies for the same. However, the system is quite complex and is riddled with considerable delays which prevent it from being useful.

For instance, the reproduction license is granted generally after 5 years of the publication of the particular edition of the copyrighted work and is granted for the “specific instructional activity”. As for the translation license the minimum waiting period is 3 years from the date of first publication of the work and can be granted only for teaching scholarship and research purposes. The system however has proven to be a dismal failure owing to such cumbersome requirements.

 The Indian Copyright Act, 1957 in Section 52(1)(a) provides that certain acts do not constitute infringement. Fair dealing with any work for the purpose of:

1. Private or personal use, including research.
2. Criticism or review, whether of that work or any other work.
3. Reporting of current events/affairs, including the reporting of a lecture delivered in public

Further, Section 52(1)(i) states that any content reproduced by a student or a teacher in the course of instruction or studies in an educational institution would not constitute an infringement of copyright.  However, this doesn’t mean that there could be reckless sharing of copyrighted content in the name of education and studies. The assumption in itself is erroneous and would likely increase the instances of infringement of copyright. There are certain limitations on the use of the doctrine of fair dealing in the cases of teaching.

First and foremost being that the work must be obtained through legal means i.e., either by obtaining permission or obtaining subscription of the paid work.

Secondly, the work in which copyright subsists should be used exclusively for non-profit education.

Thirdly, the 2012 Amendment stipulated that sharing scanned copies of paid books with the students is permissible provided the institution library has at least one hard copy of the book available in the library.

The COVID -19 pandemic posed new challenges with the eruption of e-learning and loss of access to classrooms, the photocopying increased, teachers began abusing the copyrighted content by infringing the content pf the right holder. Considering the need to keep the education system thriving and not letting the education of the children being compromised certain publishers voluntarily made their content available online as a good will gesture. Certain subscription-based media outlets also relaxed the access to the Covid related articles. However, all these relaxations were short lived and became redundant with time. This increased the financial burden upon the users especially students who now had to subscribe to the content to view content. The COVID -19 pandemic brought these long-ignored issues to the forefront implicating a need for a copyright system which would be in tune with the emerging technological innovations and cater to the challenges of accessibility.

A significant dilemma exists in which on one hand advocating for open access and reduced protection would be in the interest of the educational community, such reduced protection on the other hand may demotivate the authors to come up with unique content culminating into underproduction of literary work.

With the rapid growth of digital technologies, the digital reproduction and dissemination of copyrighted materials have become easier. This poses challenges in effectively enforcing copyright laws, especially in online educational platforms and e-learning environments.

It is important to put it out here that plagiarism and copyright are two different but sometimes related things. Schools may have rules regarding plagiarism  and what students should do to provide appropriate credit which students should know and observe. However, merely giving credit doesn’t make the use lawful if someone else’s work is used without permission and it is not covered by one of the copyright laws exceptions or limitations. Copyright protection can sometimes hinder access to affordable educational resources, especially in developing countries like India. Balancing the protection of copyright with the need for accessible and affordable educational materials is a complex task.

Therefore, it is necessary to strike a balance between the rights of the authors with the larger public interest on the other hand. Only a strong policy around copyright would help in solving the problems of inaccessibility of the educational materials to the students and benefit both the creators and learners alike.

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[1] Available at http://hdr.undp.org/en/content/2019-human-development-index-ranking (last visited on April 13, 2023).

[2] Manmohan SinghPrime Minister of India, The Prime Minister’s Independence Day Speech (New Delhi, August, 2007) available at http://pmindia.nic.in/speech/contentasp?id=570 (last visited on March 23, 2023)

[3] Available at https://aishe.gov.in/aishe/viewDocument.action?documentId=322  (last visited on April 13, 2023)

[4] Taken from https://iiprd.wordpress.com/2021/08/18/the-significance-of-copyright-law-in-academics-and-research/?utm_source=mondaq&utm_medium=syndication&utm_term=Intellectual-Property&utm_content=articleoriginal&utm_campaign=article

[5] TRIPS is one of the 28 agreements signed under the World Trade Organization that replaced General Agreement on Trade and Tariff (GATT) in 1994

[6] The Three-Step Test, Electronic Frontier Foundation, available at https://www.eff.org/files/2014/09/16/three-step_test_fnl.pdf (last visited on April 13, 2023)

[7] CS(OS) 2439/2012

[8] 759 F. Supp. 1234

[9] As held in the cases of Princeton University Press v. Michigan Document Services (MDS) Inc., 99 F.3d 13811 (6^th Cir. 1996)

[10] AIR 1959 Mad 410

[11] [1972] 2 Q.B. 84

[12] 9. F. Cas. 342 (C.C.D. Mass. 1841)

[13] 1971 Appendix to the Paris Act Revision of the Berne Convention [Berne Appendix]. The Universal Copyright Convention (UCC) includes broadly parallel accommodations. Universal Copyright Convention arts. V bis-V quater, Sept. 6, 1952, as revised at Paris on July 24, 1971, 25 U.S.T. 1341, 943 U.N.T.S. 178; See SAM RICKETSON & JANE GINSBURG, INTERNATIONAL COPYRIGHT AND NEIGHBOURING RIGHTS: THE BERNE CONVENTION AND BEYOND 123 (2006).

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Author: Arfa Khan

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