In refusing to see middle ground, the court’s judgement may reduce academic publishers’ incentive to produce books.On September 16, the Delhi high court delivered its verdict in the Delhi University photocopying case. A group of five publishers had filed a lawsuit against the university and Rameshwari Photocopy Services, challenging the large-scale photocopying, circulation and sale of course-packs (compilations of extracts from the publications). The court held that the students are free to photocopy as much of any text as they like, as long as they do so in the course of academic instruction. This, it was held, would not qualify as ‘copyright infringement’ of the works being photocopied.
This path-breaking decision has been hailed as a huge victory for universities, teachers, access to knowledge and most importantly, students. As far as this specific outcome is concerned, calling it a victory is apt. It is certainly paramount that students have access to affordable texts and not be burdened with the high cost of purchasing entire academic textbooks. Yet, other consequences of the case, as well as the reasoning itself, deserve a closer look.
The public outrage against the publishers seems to arise simply from the fact that they sued the university and a small photocopying establishment in the first place. Seen through the lens of this outrage, the case presents a binary choice from the beginning: at one end, students want course-packs they can affordably photocopy and at the other, publishers want to prevent them from doing so, thereby unreasonably forcing them to buy exorbitantly priced full textbooks instead. Given only these two options, the publishers are undoubtedly painted as villains. The court acted as if it was faced with this binary choice, although it was not. Between these extremes lay the opportunity to adopt a more sustainable approach. The freedom of students to photocopy such texts without restriction could have been protected, whilst the university compensated the publishers through some sort of licensing arrangement. By not entertaining this possibility, the court faltered.
A fair understanding of the issue requires one to consider what the publishers sought in the case. Almost the entire first half of the 94-page judgment recounts the different arguments raised by the parties. The position of the publishers is mentioned early on. The judge records their submission that the objective was not to stop photocopying by students, but instead that the university obtain a license from the publishers, under which students could photocopy course-packs. Therefore, it was never the publishers’ desire that college students actually purchase the individual textbooks. Of course, the precise terms of such a license would have been the subject of negotiation between the publishers and the university. But the essence of the publishers’ demand was that as owners of copyright, they be compensated in some way for the reproduction and repeated use of their books. On the face of it, this expectation is both fair and consistent with the general principles of copyright law. The court’s approach to the multiple issues before it provides an insight into why a possible licensing arrangement became irrelevant.
Interpretation of the Copyright Act and reasoning
The court’s interpretation of Section 52(1)(i), Copyright Act is crucial to understanding the judgment and its impact. Section 52 of the statute lists those acts that do not constitute an infringement of copyright. The relevant sub-section (i) covers a situation where “a work has been reproduced by a teacher or pupil in the course of instruction”. The court analyses the meanings of the phrases “reproduce”, “in the course of”, and “instruction”, at length. Through its analysis, and by relying on legal precedent, it concludes that these phrases in Section 52(1)(i) should be interpreted broadly so as to include photocopying for academic instruction. It holds that Section 52(1)(i) is wide enough to cover the reproduction of works while the process of imparting education goes on. This applies to all the steps involved in ensuring that the student “stands instructed in what he/she has approached the teacher to learn”, such as setting syllabus, prescribing textbooks and readings, classroom interface, tests and clarifying doubts.
Once the court has adopted this interpretation, it automatically follows that the actions of the university and Rameshwari are entirely legal. Since Section 52 is held to cover such activities, photocopying by the defendants, DU and Rameshwari, never amounted to copyright infringement in the first place. This is different from the court holding, for instance, that while the defendants’ acts of photocopying book extracts technically amount to copyright infringement, Section 52(1)(i) allows them to do so anyway. This distinction is important because by choosing the former, the publishers’ claims are rejected decisively. It means that for this purpose, no volume of photocopying by students would violate the publishers’ copyright. By holding that there was no copyright infringement to begin with, other issues raised by the publishers needed no consideration and the suit was dismissed.
This part of the reasoning may be logically consistent by itself, but it allows the court to ignore other compelling factors raised in the case. Through its all-or-nothing approach, the court could bypass the task of examining the publishers’ proposal of a licensing arrangement, the profitability or otherwise of the DU photocopying enterprise, or the publishers’ claims of commercial unviability in the present system. Academic publishers are private players who incur high publishing costs and assume significant risk. They invest in the publication of multiple books together, some of which are statistically destined to fail. Therefore, the prospect of receiving no compensation for the mass photocopying of their books must be understandably distressing for publishers. These are legitimate concerns for the industry and form the base of the controversy.
The court is not blind to this. It acknowledges the need to balance competing interests of “the owner of copyright in protecting his works on the one hand and the interest of the public to have access to the works, on the other”. However, this balance is lost the moment the court picks either extreme, even if it is more generally palatable.
It also refers to international covenants India is bound by such as the Berne Convention, under which member states have a binding obligation to “(i) not permit reproduction of the work so as to conflict with a normal exploitation of the work and so as to unreasonably prejudice the legitimate interests of the author; and (ii) to while permitting utilisation of the literary works including in publications for teaching ensure that such utilisation is to the extent justified by the purpose compatible with fair practice.” A guideline to Berne Convention is on point here. It suggests that in cases where the copyright owner may seriously suffer a loss of profit, the law should provide him with some compensation. The court addresses these themes only cursorily, stating that these covenants are left to the wisdom of domestic legislators, who are deemed to have kept them in mind while making amendments to the Copyright Act. But at the heart of these obligations lies the call for a balanced and measured approach, which it ultimately does not consider.
By virtue of the unrestricted freedom to photocopy books in the course of instruction, universities could now legally buy just one copy of an academic textbook. Students en masse could photocopy all the parts they require. And in itself, this outcome should be celebrated because students must be entitled to this freedom. At the same time, one cannot ignore that this diminishes the publishers’ incentive to publish high-quality academic works for the Indian university market. It is unsettling that the publishers – who own rights to the content in these books – will receive no royalty/license fee from universities for their use. It is also worth asking, which stakeholder – publisher or university – has an obligation to bear the cost of affordable access. The Delhi high court deserves praise for being mindful of the educational context in India, being sensitive to the needs and resources of students and not blindly applying foreign norms. But it also deserves criticism for missing an opportunity to create a balanced, sustainable framework between publishers and universities.