A single judge of the Delhi High Court denied an interim injunction in September 2016 and dismissed the lawsuit after having reserved the case for judgment for several years. In December 2016 a Division Bench of the Delhi High Court also denied an interim injunction in a judgment that was very damaging to the publishers. Given the importance of the case, it was widely expected that the publishers would appeal the case to the Supreme Court, an almost routine affair for such cases. But last week, my co-blogger at SpicyIP, Shamnad Basheer who was at the forefront of the legal battle against the publishers reported that the publishers had put out a statement announcing that they were withdrawing the lawsuit. The publisher also claimed that they would continue working with academics and students to contribute and improve India’s education system.
Then comes the issue of the legal strategy. I’ve written about it over here and here on the IPKat. For reasons best known only to the publishers, they characterized the volume of copying as ranging from 8% to 33% of a copyrighted book. As I’ve explained in an earlier post, these figures are inaccurate. The books in question were mostly compilations of essay or chapters by different authors and most of the course-packs consisted of entire chapters from these compilations – so while the portion copied may have been 10% of a book, the chapter in itself was an entire copyrighted work. Thus, effectively, entire copyrighted works were being photocopied. This was an important point that the publishers should have paid more attention to from the very beginning because it appears to have weighed on the minds of the judges. These small facts make a big difference when public perception is loaded against the copyright owners from the very beginning.
Regarding the interpretation of Section 52(1)(h) of the Copyright Act, the publishers dug their teeth into the black letter of the provision without paying enough attention to the substantial history of Indian Copyright law. I’ve explained the history of Indian law in more detail in the previous post. In specific, Indian law has a provision – Section 32A, which was introduced post the 1971 Paris Revision of the Berne Convention – the provision provides Indian users with a broad compulsory licensing provision for educational uses provided the copyright owner was compensated with reasonable royalty. The existence of this provision should have been reconciled with the broadly worded Section 52(1)(h) which allows for the reproduction of any work by a teacher or a pupil in the “course of instruction”. Read either provision too broadly and one will end up being redundant - which is not a permissible result in law.
This argument is not dealt with in either of the judgments rendered by the High Court, presumably because it was not raised before the Single Judge who first heard the lawsuit. The compulsory licensing provision in Section 32A has been rendered redundant because Section 52(1)(h) has been interpreted by the Delhi High Court to allow for any kind of photocopying without any quantitative or qualitative restrictions as long as it can be established that the photocopying was towards an educational purpose. For example, in the case of a course-pack as long as the teacher has prescribed the reading for the course it can be photocopied in its entirety. It should be noted that the judgment doesn’t define the phrase “educational institution” or limit it to non-profit institutions. India has a thriving for-profit education industry, which can also fall back on this judgment.
Indian students can’t pay for books and legit photocopies?
The most powerful argument put forth by the students and academics was one of economics. They painted a picture of penniless students and a financially broken public education system that could not pay for copyrighted material. Very often these tales are true and cannot be denied. It’s a simple, emotive argument that resonates well in India where everybody including the Supreme Court is on a populist roll. This argument however does little to address the task and costs of production of new scholarship and the challenges of pricing them right for India. This is a complicated issue as reflected in the cost structure of education in India.
As I pointed out in a piece written in the early days of the lawsuit, the annual fees at a high school like the Delhi Public School (notwithstanding the name, DPS is actually a chain of private schools) was Rs. 40,050. Now, 5 years later, it has increased to Rs. 90,000 a year. It is students from schools like DPS who then enter DU because admission to universities like DU are based on the XII standard scores and the best private schools produce the students with the best scores. A small percentage of seats (22.5%) in these universities are reserved per the Constitution for students from marginalized sections but a vast majority of students entering public universities in India are likely privileged.
What are the fees per student? In 2012, the Delhi School of Economics (the lawsuit was filed against the photocopy shop affiliated to DSE) which is a post-graduate college under DU charged an annual tuition fees of Rs. 216 (2.67 GBP) per annum and an annual library fee of Rs. 6 (0.074 GBP), and an annual library development fee of Rs. 200 (2.47 GBP). As per the latest available brochure for DSE none of these charges have increased since 2012 (despite record inflation level in the last 5 years). According to the same brochure these students then go on to work for companies like Goldman Sachs, Citibank etc.
The affordability of educational material needs to be viewed in the context of the cost of education but if higher education is so irrationally subsidized, how are publishers supposed to price their material to fit the definition of ‘affordability’?
Will contract triumph where copyright has failed?
The last question that needs to be addressed is why did the publishers withdraw the lawsuit? Their public statement doesn’t provide any reason. One likely answer is that they intend to shift their business models to the digital world, making available their works to universities through databases like the Oxford Scholar Online. Licensing agreements for these databases are likely to be governed by foreign law, most likely English law and publishers will be able to curb fair dealing limitations and exception with the help of arbitration clauses that locate litigation before foreign arbitral tribunals. Do Indian universities have the resources to deal with this changing paradigm and does the law help provide users with remedies against abusive conduct by owners of such databases? That is a debate worth everybody’s time. In the meanwhile, it is the smaller Indian publishers who are going to feel the brunt of the decision to not appeal this judgment. Some of them have already expressed their unhappiness with this decision of OUP etc. to withdraw the lawsuit. They deserve a better explanation that the bland public statement put out by OUP.
The writer is co-author of Create, Copy, Disrupt: India’s Intellectual Property Dilemmas (with Sumathi Chandrashekaran) published by OUP, India and is a Research Associate at ARCIALA, School of Law, Singapore Management University