Photo: Hinterkappelen (CC-BY-SA)

[Communia-Association, Link (CC-0)] As the copyright reform process continues in Europe, it is worth noting the result of an Indian case concerning photocopying and the extent of the educational exception. In 2012, Delhi University and a small photocopy shop named Rameshwari Photocopy Service were sued by Oxford and Cambridge University Presses together with the Taylor & Francis Group. The publishers alleged that the photocopying of substantial excerpts from their publications and issuing or selling them in course packs infringed their copyrights. They also argued that Delhi University should obtain a license from the Indian Reprographic Rights Organization in order to make the copies.

Publishers lost both the initial court case and the appeal. In what can be seen as a landmark case, the court provided an expansive interpretation of the Indian educational copyright exception. It highlighted issues of educational equity as a central feature of the decision. The Delhi University case is worth considering as we debate copyright and education in Europe. In the ongoing reform, we should focus our efforts on advocating for what a well-functioning education ecosystem requires to promote successful teaching and learning, and less on protecting publishers’ licensing solutions.

This is not just about copyright

What struck many observers of the case was the overt inequality between the sides. On one hand, we have an Indian public university and a local, family-run photocopy shop. On the other, some of the major global educational publishers. The case should be seen not just as a debate on copyright, but on educational equity and access to knowledge. As Lawrence Liang noted, it is worrying that the presses of two of the world’s oldest and most prestigious universities have attempted to “lock education with a straitjacket of property”.

I have been following debates on copyright and education for several years, and I’ve noticed how rarely educational stakes are brought into debates around the educational exceptions. Educational goals are, for the most part, absent in these discussions. Instead, the situation is characterized as primarily transactional, in which teachers and students are seen only as people making copies and using content from publishers (and possibly also breaking the law). In a debate on the educational exception that took place in the Polish Parliament during the copyright reform of 2015, chairwoman of the Culture Committee declared that her only duty is to protect rights of creators.

Education first; copyright is not divine

The verdict, delivered by Justice Rajiv Sahay Endlaw in November 2016, places education first;  copyright is only second in importance. (The verdict has been appealed by the publishers, and then upheld by the Appeal Bench of the Delhi High Court, which remanded the matter for trial only on two minor issues).

In a landmark judgement, Justice Endlaw offered an expansive interpretation of the educational exception. He refused to consider issues such as what percentage of a work can be legally photocopied (which is the typical discussion about copying), or what exactly is “instruction”. He refused to apply an American-style “fair use” test either. Instead, he based his verdict on a broad understanding of pedagogy that covers a wide range of activities, conducted not just within the confines of the classroom. (I will not focus here on legal details of the case, which have been analyzed in detail. I recommend in particular IPKat coverage here and here, and articles by Lawrence Liang here and here.)

In the order dismissing the suit, Justice Endlaw made several statements worth quoting in full, as they provide a strong vision of copyright as a tool meant to support education, instead of a goal in itself. Most importantly, he states that:

“Copyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public.”

Endlaw also makes a strong statement on equity in education:

“So fundamental is education to a society — it warrants the promotion of equitable access to knowledge to all segments of the society, irrespective of their caste, creed and financial position. Of course, the more indigent the learner, the greater the responsibility to ensure equitable access”.

These are the fundaments, on the basis of which the verdict is made.

The judgement also addresses the issue of changing technological conditions that affect the means of copying. Justice Endlaw relates some of his own experiences of copying textbooks by hand, like a medieval scribe, as a law student:

“When an action, if onerously done is not an offence, it cannot become an offence when, owing to advancement in technology doing thereof has been simplified. That is what has happened in the present case. […] When the effect of the action is the same, the difference in the mode of action cannot make a difference so as to make one an offence”.

Finally, the verdict supports a broad understanding of a “course of instruction” that can encompass activities conducted beyond the classroom, in other institutions (such as public libraries), and with the help of intermediaries.

The publishers repeat the licensing mantra

In a statement published after the appellate court verdict, the publishers wrote: “It is unfortunate that the court’s decision today could undermine the availability of original content for the benefit of students and teachers. […] We brought this case to protect authors, publishers and students from the potential effects on the Indian academic and educational book market caused by the widespread creation and distribution of unlicensed course packs by a copy shop operating from within the premises of the university, where a legitimate and affordable licensing scheme is already in place.”

And thus we hear the same tired argument again and again: licensing is the perfect solution, and reliance on an exception to copyright for purposes of teaching and learning is “unfortunate”, or “undermines” a market. It is the same approach as the one that is at heart of the current European proposal for an educational exception, which, as we know, is made essentially irrelevant because of a rule that would allow member states to ignore the exception if there is an “adequate license” present.

One could only wish that Europe’s legislators would voice just as strong support for educational equity as the judges from the Delhi High Court. Lawrence Liang, a lawyer who has been assisting the defendants in the case, rightly notes that the verdict is a much needed reminder for two venerable university presses about the balance between copyright and education. Liang ends his text by going all the way back to the beginnings of copyright law and notes that Europe’s first copyright law, the Statute of Anne from 1710, was called “An Act for the Encouragement of Learning”.