by Koka Tarini Siddhartha
The Chancellor, Masters and Scholars of the University of Oxford and others v. Rameshwari Photocopy Services and another, more commonly referred to as ‘The Delhi University (DU) photocopy case’, definitely features amongst the top five most-discussed judgements of the year. While we must admit that our post on this case is a tad overdue, nothing is final in a court of law until the gavel hits the sounding block, right?
As you may have inferred, in this post, we will analyse the DU photocopy case, the main arguments submitted by the parties, and the judgement as given by the High Court of Delhi. It is particularly relevant now, as the decision has been appealed and is being argued at the Division Bench of the High Court of Delhi as you read this post.
What is this case about?
The origins of this case can be traced to the year 2012, when five plaintiffs (Oxford University Press and Cambridge University Press, amongst others) filed a suit for interim relief against the defendants (Rameshwari Photocopy Services and Delhi University) for the alleged copyright infringement of their publications by photocopying substantial portions of their books, compiling them into course packs and selling them thereafter.
The plaintiffs are publishers of textbooks that are used as reference material and suggested readings at the Delhi School of Economics, which is under Delhi University. By mass photocopying extracts and converting them into commercial products (namely, the course packs), the defendants were infringing on the plaintiffs’ copyright.
The publishers had approached the high court seeking a permanent injunction against the two defendants. As per an order dated September 26, 2012, Delhi University was directed to examine the plaintiffs’ proposal of obtaining a photocopying license from the IRRO (Indian Reprographic Rights Organisation). A few days later, Rameshwari Photocopy Service was restricted from making any further course packs until the case was disposed.
This was followed by two more defendants joining the suit, namely the Association of Students for Equitable Access to Knowledge (ASEAK) and the Society for Promoting Educational Access and Knowledge (SPEAK). The hearing commenced on April 25, 2013, and went on till November 21, 2014. The judge reserved his judgement and ultimately delivered it on September 16, 2016.
Bearing in mind the length of this judgement (ninety-four pages long) and the multiple parties to the suit (five plaintiffs and four defendants), the arguments as submitted by the parties are only briefly summarised in the ensuing paragraphs.
The plaintiff-publishers contended that allowing the photocopying of textbooks, whose market is only education, would result in the death of any kind of educational publication as the authors and publishers would have no incentive to write or publish.
While they did not request a complete ban on photocopying or on course packs, they suggested the Delhi University obtain a license for such course packs, through which the publishers would benefit as well. The plaintiffs also refuted all claims of fair dealing as suggested by the defendants (more on this later).
The defendants referred to the fair dealing provisions for the protection of their course packs on the grounds that the suggested textbooks were not only expensive and unaffordable, but the publication of some of the important books had been discontinued, which meant limited resources for the students.
As per the prescribed syllabi, the recommended readings are only extracts from a variety of authors/publications and not entire books. To expect students to buy all the books would be foolish and unreasonable, which thus resulted in the compilation of course packs, which also have the added benefit of safeguarding the original books from damage through repeated photocopying.
‘In the course of instruction’ versus ‘In the course for preparation of instruction’
The sole question in dispute was one of law. Simply put, did the making of course packs amount to copyright infringement? We have discussed in previous posts (here and here), that every copyright holder has the exclusive right to communicate, reproduce, adapt and translate his work by virtue of the Copyright Act, 1957. This exclusive right is subject to a series of exceptions, referred to as the fair dealing provision.
The crux of this case was the analysis of one small sub-section which was hailed as a victory by some and severely criticised by others: Section 52(1)(i) of the Copyright Act, 1957 — remember this section, for better or worse. Through this section, any teacher or student can reproduce any work in the course of instruction or as a part of questions or answers in an examination.
A considerable portion of this judgement was taken up by the phrase “in the course of instruction”. The plaintiffs insisted that any photocopied material could be used only during the personal interface between the teacher and student and not otherwise. In contradiction, the defendants submitted that “in the course of instruction” included any preparation done by the teacher prior to the instruction, during the live interface with the student and after the tutelage when the student uses the material to prepare for his/her examinations.
What did the Delhi High Court finally say?
Justice Endlaw weighed the arguments submitted by both parties and finally delivered his judgement almost two years after the hearing was concluded. It was fundamentally a balance of interests between the private rights of the authors and the public interest, as well as one between profit motives and access to knowledge.
To truly get the essence of the judgement alongside the precedents referred to, it is strongly recommended that you read the judgement in spite of its length. The judge decided in favour of the defendants and found the course packs to be covered under the fair dealing provision. Delhi University had no commercial intention in distributing the course packs and the photocopying centre only acted as its agent.
The judge also broadly interpreted the phrase “in the course of instruction” to include the time before, during and after the interaction with the student. Emphasis was made on the intention of the copyright legislation which aims to increase and not impede the growth of knowledge. In no circumstance will an excerpt be enough to replace a book. Further, students would not buy the whole textbooks if this were imposed on them, mainly due to reasons of affordability.
Conceding to the plaintiffs’ suggestion of obtaining a license from the IRRO would imply that photocopying of textbooks did not amount to fair dealing. A hundred or thousand copies instead of a few would not make something that was not an infringement an infringement. Even as per international conventions and norms, such reproduction through photocopying would neither be prejudicial to the author’s interests nor be unreasonable, as a maximum of just thirty percent of any given textbook was extracted for purposes of the course pack.
The publishers have appealed this decision to the Division Bench of the High Court of Delhi, hoping to conclude the matter before the court breaks for Christmas vacation this year. The judgement could either remain the same, which would be the biggest victory for students, teachers and the open access to knowledge, but be completely unprofitable for the publishers; or it could be reversed completely, resulting in a nightmare for educational institutions, and the publishers being painted as monsters.
The third alternative is for the court to reach a (near) neutral ground, whereby universities and other institutions are required to obtain a yearly license from the IRRO. However, in the age when we have unregistered and incompetent copyright societies like the IPRS and PPL governing musical compositions, lyrics and sound recordings, with these societies allegedly mismanaging royalties and laundering money, it is doubtful how successful the IRRO will be. Hopefully by the end of this year, we will know the fate of this matter for sure.