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Monday, 26 September 2016

To photocopy or not: Delhi High Courts grants universities carte blanche to photocopy for educational use

The IPKat is delighted to receive this guest post from long time Katfriend Prashant Reddy  T. (details at the end of the post) about a remarkable recent decision from India.

The recent judgment of the Delhi High Court dismissing the lawsuit filed by publishers like Oxford University Press, Cambridge University Press and Francis Taylor has been received with much joy and applause from virtually all quarters of Indian academia and students. In a 94 page judgment, delivered more than 600 days after it was first reserved, the Delhi High Court has held that Section 52(1)(i) of the Copyright Act, 1957 allows for students and teachers to photocopy books and other educational material without any limit.

The target of the lawsuit was a particular form of photocopying wherein the faculty at the Delhi School of Economics (DSE) would prescribe a reading list, usually comprising chapters from different books and a photocopying shop contracted by the university would then compile course-packs consisting of these various chapters and sell them to students, for profit. The publishers were seeking to monetise this practice by charging either the university or photocopy shop, a royalty of 50 paise per copyrighted page that was copied – a fair bargain, given the photocopier too was getting 50 paise per page. This is a business model followed in most western universities because it is unreasonable to expect students to buy an entire book for a single chapter. 

The High Court obviously disagreed with the publishers and there appears to be nobody in Indian academia who disagrees with this decision. Rather we’ve been told that the decision restores a “balance” to copyright jurisprudence and that it will facilitate access to knowledge. Unfortunately nobody explains the economics of this balancing act.

A law that predated the photocopier machine

At the heart of the dispute is Section 52(1)(i) of the Copyright Act which allows for the “reproduction of any work” by a “teacher or a pupil in the course of instruction”. This provision was inserted into the Copyright Act in 1957 – an age before the photocopier machine became commercially viable in Indian universities. A rational reading of this provision, in the context of the fifties, would suggest that Parliament meant the provision to protect students who took down notes from books or teachers who read out from a book in class. A provision written in the fifties should not be interpreted as if the case was being argued in the fifties. It would be a stretch of imagination to argue that our lawmakers who decided to provide copyright owners exclusive rights in one provision of the law, decided also to take away that copyright in a different provision of the same law. Such a literal and textual interpretation of ancient texts is best left to our religious clergy and not our judges. 

India’s international negotiating position

Separate from the issue of Section 52(1)(i) is the history of India’s international negotiation on copyright treaties. In 1967, India had famously demanded that the Berne Convention on Protection of Literary and Artistic Works be amended to provide developing countries with various exceptions and limitations for educational and other uses. At the time India, a newly independent country after almost two centuries of colonisation, had legitimate concerns with the high standards demanded by the Berne Union. One of the main demands by India at the time was to allow the use of copyrighted material for educational uses without any remuneration for users. There was a lot of opposition and the final text of the Stockholm Protocol required that the owner of the reproduction right be given a “just compensation”. 

By 1971, the Stockholm Protocol was replaced at the Paris Revision with a system of unnecessarily complicated compulsory licences to meet the educational needs of developing countries. In 1983, Indian law was amended to incorporate these compulsory licensing provisions into Sections 32, 32A and 32B of the Copyright Act. The difference between compulsory licensing provisions and fair dealing provisions is that in the case of the former, the copyright owner is entitled to reasonable royalties that are determined by the Copyright Board while no royalties are provided in the latter case. Clearly Indian policymakers in 1983 had decided that the use of works even for an educational purpose deserved to be compensated. It is of course a matter of regret that these provisions have rarely been used in India. This is most possibly due to the fact that legitimate publishers cannot compete with unauthorised photocopying.

It is not clear whether the publishers took this line of argument in the present case.    

Can and should India free-ride off western scholarship?  

The underlying presumption of those batting for a wide fair dealing exception in Indian law is that publishers will continue to publish scholarship for foreign markets and that India can continue to free-ride off such efforts. This free-rider approach has worked well for Indian in other IP debates especially the pharmaceutical patent regime. Without a patent regime, the Indian pharmaceutical industry managed to free ride off innovations in the West. But does this logic hold true even for scholarship? To an extent it does. For mathematics and sciences, which are produced for foreign markets, Indian universities can continue to buy one book and allow student to photocopy it. But what about the social sciences, economics and law – these are areas where scholarship is required to be India specific and preferably written by Indian scholars. 

Why are publishers going to invest more in publishing new titles in these areas of study when the main Indian market remains small? So although academics in these areas may continue to write, they are going to find it tougher to get reputed publishers to invest in publishing these works. The ultimate loser is going to be Indian academia.

Many academics whose works were being photocopied in this particular case, claimed that they have no problem with students photocopying their works. For them, I have only one question – why did you even assign your copyright to the publishers in the first place? Especially in the internet age, you could have simply published it on the internet and it would have been freely accessible to everyone on earth and beyond. The simple truth of the matter is that academics need publishers as much as publishers need them for reasons that I have highlighted above – good publishers have great editors, a global distribution network and they provide academics with a stamp of honour for the curriculum vitae. Each factor also impacts royalties earned by the author, no matter how meagre those royalties maybe in the Indian context given the low pricing of books. To recount an anecdote narrated by famous historian Ramachandra Guha in an essay on OUP completing a century in India in 2012: “A British historian once said that being published by the Oxford University Press was like being married to a duchess—the honour was greater than the pleasure”.   


The writer blogs for SpicyIP, is co-author of a forthcoming book to be published by OUP – Create, Copy, Disrupt: India’s Intellectual Property Dilemmas and is a Research Associate at ARCIALA, School of Law, Singapore Management University.        

5 comments:

Ron said...

It used to be the case that some of the more authoritative publishers of learned journals (such as the American IEEE's series of technical journals), not only required the author to assign the copyright to the publisher as a condition of acceptance (granting a licence back to the author), but also made a charge for publication. I am not sure what the present situation is.

Anonymous said...

Completely agree with the last paragraph, Prashant. If these 'Authors' were OK with giving their work for free, they can do so - by first repaying the royalties that they got earlier and thereafter- as you said, putting their new work on open access platforms, for free!

These Authors can't be on both sides - publishing with 'big' names and then behaving holier than thou.

Regards,
Freq. Anon.

THE US anon said...

Does this absolutely destroy the extremely ridiculous margins for college text books? All a university need do now is buy one, and provide FREE copies to every student.....

Anonymous said...

There is no global copyright standard irrespective of what supporters of the so called Berne standard advocate. Even treaties agreed globally must apply in individual states and be interpreted to suit.

What next a WTO Panel? Do publishers dare? Who will bring it? Certainly not the EU. And not the US - I mean if the US can get away with the home style exemption in their law following the never enforced EC action against it before the WTO, is anyone going to seriously bring an action against India for an educational use? And after the international exhaustion rule was recently applied by the US Supreme Court.

By the way, the EU (as it is now) if it is tempted to react, will be stymied by the CJEU's own application of various exceptions including that Court's approach to the three steps test.

Let it rest publishers.And by the way , this poster remembers the days when you were able to get these photocopies handed out to us at English universities as students, before the publishers clamped down.Sometimes lecturers continued to do it covertly. As an impecunious student in the days of the full grant, it certainly helped me in a developed country which has now gone the other way on this point.Don't get me started the recently adopted and frankly barmy EU proposal on educational use (licence vs exception).

Kant said...

Some of the text books I have picked up over the years include some very nasty publications on cheap, thin paper, such as the Macmillan International Series. Presumably these are printed with a view to selling them in jurisdictions where the full price version would not be affordable and are an attempt to make sales in competition with the local photocopying industry.

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