Two recent articles in the Indian Express – in response to the Delhi high court judgement upholding the legality of photocopied course packs – raise larger questions about ‘the right to copy‘ (by Bibek Debroy) and about ‘shortcut to scholarship‘ (by Krishna Kumar). In both articles, there is a censure of the act of copying, though for reasons that are entirely different. As someone who teaches at Delhi University, who was a petitioner against the publishing trio, and who works and writes on aspects of intellectual property (IP) rights, it becomes triply incumbent upon me to respond to issues erroneously raised by the two columns.
Krishna Kumar’s central lament is that photocopied materials can never replace books. Any knowledge-dissemination culture that encourages reading through photocopied course packs “promotes the values associated with an exam-centric culture of education” and “perpetuates India’s academic poverty”. Since students now come from well-to-do sections of Indian society who can afford several kinds of luxuries, academic institutions should promote the “culture of owning and… reading books”. Course packs are unaesthetic, books are beautiful; books promote a culture of knowledge and for “India’s nation-building…to be original,” institutions, their libraries and students should buy books, particularly since publishers worldwide are having a hard time coping with the recession.
It is unlikely that Kumar, an educationist of tremendous and long-standing repute, is unaware of an Indian university’s mixed socio-economic character. While there are well-off students, there is a much larger number who wouldn’t have been here if the cost of education was any higher. I have had students who find travelling in the metro too expensive and settle for bus rides that are longer and less comfortable, but cheaper. I have had many students over the years whose ‘course pack’ bills have had to be financed through collective fund-raising in the classroom. I have had students who need their heavily subsidised fees to be written off (under various scholarships and freeships) because they cannot afford even that. These are not just some sob-stories that gullible, bleeding-heart teachers swallow. These are real stories, of students who come from families where the breadwinners are tailors, petty shopkeepers, rickshaw pullers, small traders or servants who are trying to get their children educated. For whatever this education is worth, access to it is more important than the aesthetics of it. For them, the Rs 300-course pack is one of the ways they access it, the “fading ink” of the course packs notwithstanding.
On publishers and the difficult times of recession that seems as a matter of some concern to Kumar: In an exhaustive study, titled The Oligopoly of Academic Publishers in the Digital Era, Vincent Larivière documents how the biggest publishers have increased their profit margins and their share of the journal market. For Elsevier, absolute profits, as well as the profit margin, have been on the rise, with the exception of the 2008-2009 period of economic crisis, resulting in profits reaching an all-time high of more than $2 billion in 2012 and 2013. Similarly high profit margins were obtained in 2012 by Springer Science+Business Media (35%) and John Wiley & Sons’ (28.3%), Taylor and Francis (35.7%) putting them on a comparable level with Pfizer (42%), the Industrial & Commercial Bank of China (29%) and far above Hyundai Motors (10%), which comprise the most profitable drug, bank and auto companies among the top ten biggest companies respectively, according to Forbes’ Global 2000.
Kumar’s defence of publishers comes at a time when exasperated by the rising subscription costs, universities like Harvard are encouraging their faculty members – the actual content creators – to make their research freely available through open access journals and to resign from publications that keep articles behind paywalls. Princeton University has adopted an open access policy that strives to make faculty publications openly accessible to the public. There is a groundswell of support for open access publishing that is alarmed at the rising “cost of knowledge”. It is a belated understanding that academic publishing today rests on a unique business model where the universities and authors that create this academic content for free must pay to read it!
It is in recognition of this cost that copyright laws the world over acknowledge the importance of access as a way to disseminate knowledge and resources. Even the US copyright laws allow for reproducing 10%, or less, without the need for a separate licensing agreement for reprographic reproduction, as the publishers in the Delhi University vs Rameshwari photocopy case were demanding. In a recent case against Georgia State University’s practice of readings being posted on course websites by instructors, the court set the fair-use threshold based on ‘purpose and character if use’, ‘nature of work’ and ‘amount and substantiality of the portion used’. So this is no “Third World delusion”; it’s a globally recognised model of dissemination.
This brings me to a brief point I wish to make in response to Debroy’s piece, the central argument of which is not clear. Does he support the photocopying cause or does he not? Is he critical of author’s getting nothing or very little by way of royalty? If he is, then does he have a position against the business model of publishers? If he does, then why does he take a swipe at the ‘left-wing’ scholar who publishes and owns his (gender disclosed) own copyright? In a mélange of issues, one of the points he seems to be making raises a philosophical conundrum at the heart of copyrights in particular and IP in general. Debroy suggests that as a society we have not paid enough attention to plagiarism which is “rarely regarded as a serious issue, in this age of copy and paste”. He seems to suggest that it is a societal attitude, a lack of attention and appropriate action against what is essentially a theft like any other, and that is as harmful to society as other recognised forms of theft are.
Debroy is right – we do not recognise free downloading of music or buying pirated books and CDs a theft in the same way that we regard stealing of someone’s physical copy of the book or a car from a showroom. But it’s not because “we don’t accept these things as commercial”. That’s a facile assumption. We all know about the flourishing commerce of music and book industry and how it takes a beating with free downloads and zero-cost circulation. But we do it despite this knowledge and understanding. It is important to ask why? Why do the same moral considerations not weigh in as when we steal books or cars or cash? Compare a theft of your wallet with the photocopying of your book or lifting of your musical tune. There is a certain hesitation in conflating the two. And this hesitation is not trivial. On the contrary, it draws from common sense that makes a moral distinction between a theft that dispossess someone and a theft that does not. There is an inherent difference between a theft that deprives an owner of the use of stolen object and an infringement that makes more copies of the same, leaving the owner completely free to use and transfer.
The distinction lies in the nature of the ‘things’; ideas are not like cars or televisions that deplete or exhaust with use. Explaining the distinction, Thomas Jefferson, in 1813, stated evocatively: “If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea. . . . Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.” This is an intuitively powerful distinction, one which informs the common sense of the people in their everyday conduct but one which is increasingly ignored by critics of open access.
As publishers – Oxford University Press, Cambridge University Press, Taylor and Francis – gear up to appeal against the high court verdict in the Rameshwari photocopy case, it is important to bear in mind that even though “fair use” has not been defined in terms of a limited exception by the Indian copyright law (section 52(1)(i)), a majority of the contested reproductions are below the generally accepted fair-use threshold of 10% (the average percentage of books copied being 12.5%). Legal purists may quibble that the high court has treated section 52(1)(i) not as a limited exception but as a determining, controlling norm in the name of ‘access to education’. But it is worth noting that while the “procedure established by law” may have left the quantum of fair-use undefined, it makes the intention of the rule quite clear – reproduction by a teacher or a pupil in the course of instruction shall not constitute an infringement of copyright.
If we are seriously interested in advancing a justification for copyrights which draws from the greater good created, then we must also take into perspective those whose activities are constrained by copyrights. Which greater good is advanced when the prescribed reading material is inaccessible by tens of thousands of university students, some of who can ill afford prohibitively priced books? Which aggregate social utility is maximised when we take cognisance of the abysmal books-to-student ratio in cash-strapped libraries? How much harm is to be prevented if Delhi University photocopiers were to be permitted to freely circulate study material? Legal and social commentators need to ask these larger questions.
Rajshree Chandra works and researches in the area of intellectual property rights. This article draws from some of her earlier authored works: ‘Piracy and its Discontents’, EPW; ‘Is there anything like copying fairly; and ‘Right to Copyrights Vs. The Right to Copy’, Kafila.online.