Twice in the last three months, the Delhi high court has dealt a blow not only to publishers but also to copyright owners.
The saga of the Delhi University photocopying case has managed to hold the attention of a large and diverse audience for some time now. In 2012, when the publishers first sued the university and the photocopier, there was collective outrage from the student and academic communities. Protests and petitions were organised to shame the publishers into withdrawing their case, but they were unmoved. In September this year, when the Delhi high court held in favour of the university, dismissing the publishers’ case altogether, these groups felt predictably vindicated. A short while later, on December 9, an appellate bench of the court delivered its verdict, reinforcing the September decision for the most part.
The appeal verdict has revived the publishers’ lawsuit. At first glance, this may seem like a victory for the publishers. But in reality, this does not help their cause significantly. The case has been restored for two issues of fact. However, the legal conclusions which form the real crux remain in favour of the university.
The judgment focuses mainly on the interpretation of one provision of the Copyright Act – Section 52(1)(i), which pertains to photocopying for the purpose of teaching and education, and when this is legal. In this context, the court seeks to answer two vital questions.
Fairness of use
First, when a copyrighted work is used for educational purposes – by students or teachers – how should one judge if such use is fair?
The court holds that “there has to be fairness in every action… and especially when a person’s result of labour is being utilized by somebody else, fair use must be read into the statute.” Now, the phrase “fair use” is generally understood to signify a very precise test in copyright law. Courts across the world consider four specific factors whilst testing if a particular use can be called “fair use” or not – the purpose of the use, the amount and substantiality of the portion used, the nature of the work and the effect of the use on the potential market.
The court departs from this test entirely and formulates another. The new test for fairness of educational uses is clearly stated: is the extent of the use justified by its purpose? If so, it is considered fair and is legally protected. In the court’s words, this simply means, “so much of the copyrighted work can be used which is necessary to effectuate the purpose of the use, i.e., make the learner understand what is intended to be understood”.
Let’s go over that carefully once more: until and unless a student achieves their purpose – to learn what they need to – they can use these copyrighted works without restriction and this use will be treated as fair.
This new standard is remarkably flawed for several reasons. It is subjective to the point of being almost incapable of proving, it is self-fulfilling and it is very individual-specific. Presumably each student has a different learning curve and pace. How can one possibly determine when a student has completed this process and finally learned? Does that end point actually exist? Is it even possible for every student to rely on the same, uniform texts as everyone else, and individually reach that imaginary tip? A great thing about diversity in the classroom is the deep interest and knowledge only some students bring to the table, which rubs off on others over time. In an occupation as fluid and contagious as learning, it would be nearly impossible to tell when one can stop because there is potentially no limit.
At the risk of oversimplifying, this leaves the court with only two choices. Either it can be dogmatic and impose an arbitrary line to learning. For instance, it could say that a student has achieved the end of learning once the syllabus is complete. This would be a tragic view. Or it can think of education expansively, as it must. But this would make the new standard entirely self-fulfilling. If the court does conceptualise education and learning in this broad manner it would start with a foregone conclusion. Any use of copyrighted works by students to any extent – for the purpose of education and learning – would be considered fair and protected.
Why is this a problem? By itself, it is not. In fact, this specific outcome calls for the September-judgment’s celebrations to resume, because it continues to give students wide access to educational material. However, it does so by undermining the integrity of the copyright system and depriving the publishers of revenues they are entitled to as copyright owners. This begs the second question.
Second, does this use of copyrighted (instructional) work by students actually hurt the publishers?
The bench briefly considers whether the students’ and photocopier’s actions will adversely impact the market for these copyrighted works. The court’s reasoning here is bordering on the absurd.
It holds that since students would never have bought full academic textbooks, they were never the publishers’ market in the first place. This logic entirely misses the point of the publishers’ case. The potential customer in this scenario was never the student. It is the university. The publishers’ goal was not to compel students themselves to buy these books, an intention the bench acknowledges. Instead, they hoped the university would be compelled to buy a license through which students could photocopy the texts they needed. By reframing the publishers’ argument as one against the students as opposed to the university, the court fails to consider the economic impact this is likely to have on academic publishers.
If large-scale photocopying continues in this manner, DU and other universities would have little reason to invest in academic textbooks. Once universities have purchased a single copy of an academic textbook, students can photocopy the portions they need in order to achieve their purpose of learning, a bar that is both low and vague. Students certainly stand to gain from this, as does the university because it incurs low costs. The publishers, however, lose out on a significant revenue stream. By approving the large-scale photocopying of academic textbooks, the court has effectively removed any need for the university to either obtain a license or purchase a proportionate number of books.
One factor in the traditional fair use test discarded by the court, “the nature of the work”, is crucial in the DU photocopying case. When popular literature and films are used in the classroom for teaching and instruction, the owners of those copyrights would hardly notice because there are enough people buying books and movie tickets for entertainment; their main market remains unaffected. Academic textbooks are very different species. Their audience is much more limited due to the technical subject matter which caters only to persons in specialised fields. If a large chunk of this audience – students and universities – can simply photocopy the parts they need, it is hard to see how this would not adversely impact academic publishers. The court’s reasoning here reflects a shallow understanding of the economics at play.
A licensing arrangement could have achieved a similar result for students, whilst rewarding the publishers for their investment. In that situation, the university would have had to incur costs to ensure students have access to academic materials, which seems like a more intuitive distribution of costs.
Of course, this saga is not yet over as the publishers are likely to appeal to the Supreme Court. The biggest winner so far appears to be the university, which has somehow managed to wrangle a subsidy for academic textbooks from the publishers. Apart from the obvious loss to the publishers, a blow has also been dealt to the rights of copyright owners. For the second time in three months, their claims have been categorically rejected by the high court while it stressed that ‘balance’ is the foundation of copyright law.