Anubha Sinha, CIS-India
Reposted from EIFL,org, Link (CC-BY)
On 9 May 2017, a five year court battle between publishers and universities finally came to an end when the Supreme Court of India dismissed an appeal by the Indian Reprographic Rights Organization (IRRO) challenging an earlier judgment of Delhi High Court that ruled course packs in India legal for educational purposes.
In a case that gained wide international attention, issues such as the cost of textbooks in India were raised, students agitated for fair access to educational materials, and the jurisprudence on copyright in India has taken a leap forward. In this guest blog, Anubha Sinha, Programme Officer on Openness and Access to Knowledge at the Centre for Internet and Society India, discusses the judgment in the case known as the ‘Delhi University photocopy’ case, and what it means for access to educational materials in India.
THE FACTS OF THE CASE
In 2012, three academic publishers, Oxford University Press (OUP), Cambridge University Press (CUP) and Taylor & Francis, sued the University of Delhi (DU) and Rameshwari Photocopy Service (based at the university) for copyright infringement for photocopying parts of their textbooks and distributing them in course packs – collections of assigned reading materials – exclusively to students for a fee.
The publishers sought to compel Delhi University to enter into a licensing agreement with the Indian Reprographic Rights Organization (IRRO), that manages certain rights on behalf publishers and other rightsholders in India.
The course packs in question comprised excerpts from textbooks on course syllabi at Delhi School of Economics (part of the University of Delhi). The court analyzed the content of four packs that included works such as Transforming India: Social and Political Dynamics of Democracy (OUP), New Cambridge History of India (CUP) and Political Philosophy (Routledge/Taylor & Francis).
The court found that on average 8.8% of the textbooks, that each cost on average 39 USD (2,500 INR), were used in the course packs. Students and faculty were charged a nominal fee of one US cent (40 paise) per page to buy the course pack.
THE COURT’S JUDGMENT – NO INFRINGEMENT, NO LICENCE REQUIRED
In an interim order in 2012, the court issued a temporary injunction restraining the sale of course packs by Rameshwari. However, the order was overturned when in subsequent judgments (in September 2016 and an appeal judgment in December 2016) the court ruled in favour of the University.
On whether the making of the course packs was a copyright infringement, the court found no infringement because the activities fell under the education exception in Indian copyright law (specifically section 52(1)(i)).
Section 52(1)(i) of the Indian Copyright Act (1957) allows any work to be reproduced by a teacher or pupil for the purposes of instruction. In a liberal interpretation of the provision, the court held that the reproduction of a work is not limited to reproduction by an individual teacher or pupil, it also extends to the action of multiple teachers and students. Further, the court held that the phrase ‘course of instruction’ embraces any instruction for the duration of an entire course or teaching programme, it is not limited only to teaching in the classroom.
On whether the university must obtain a licence to photocopy from IRRO, the court held that no licence is required because the activities are covered by Section 52(1)(i).
The court also found there to be no commercial exploitation of copyright in the works.
During the case, the publishers tried to impute a profit motive on the part of the defendants. They argued that by selling chapters of the books, the defendants were in direct competition with publishers thereby creating an adverse effect on the publishers’ market.
The court rejected the argument holding that students are hardly potential customers for multiple books used in the course packs. For example, post-graduate students might have 35-40 reading assignments per subject.
Without the course packs, students would simply look elsewhere for the material, including the university library. In fact, the court noted that increased access to education has the potential to expand the customer base for such books in the future.
PRIMACY OF PURPOSE
Importantly, the court said fairness of use is to be judged only by its intended purpose i.e. education, and not from any qualitative or quantitative uses (such as which parts of the text are used or the number of copies made).
The court’s judgment on appeal, that references case law from Canada, the USA the UK and New Zealand, emphasizes that the determination of ‘fairness’ of a use rests solely on the “touchstone of the purpose of the use and/or other limitations expressly built in each of these clauses”. Thus there is no requirement to introduce other tests or factors when applying Section 52(1)(i) and so a general fair use principle is to be read into all such provisions in the law.
THE CASE CONCLUDES
The High Court remained undecided on two points of fact: whether the works included in the course packs were necessary for educational instruction, and whether the photocopying of entire books is allowed under Indian law. It decided to refer these issues for determination to a trial court.
However, the trial court hearing never proceeded because in March 2017 the publishers decided to withdraw from the case, in a move that surprised observers. A joint statement issued by OUP, CUP and Taylor & Francis acknowledged the important role that course packs play in education, and looked forward to working “even more closely with academic institutions, teachers and students to understand and address their needs”.
In a further twist in April 2017, the Indian Reprographic Rights Organization (IRRO) filed an appeal to the Supreme Court challenging the High Court’s judgment.
On 9 May 2017, the Supreme Court summarily dismissed IRRO’s appeal.
IMPACT OF THE DELHI UNIVERSITY CASE
The ruling in the Delhi University case is a huge triumph for access to educational materials in India over the interests of private copyright holders.
The case shone a light on the socio-economic context of university level education in India, in particular the cost of textbooks. Students became advocates for access to knowledge, and the law on access to educational materials in India has been advanced.
BOOK PRICES IN INDIA ARE AN ISSUE
A study submitted to the court showed that consumers in the global South often have to commit significantly higher proportions of their income to buy books because absolute book prices are far higher than in the global North. For example, if consumers in the US had to pay the same proportion of their income to purchase the Oxford English Dictionary, it would cost a ludicrous 941.20 USD!
Not even university libraries can afford these prices. While libraries do purchase multiple copies of textbooks, they cannot cater for the entire student population that can ran into hundreds of students enrolled on an individual course.
In addition, the latest editions are not always available to purchase in India. So the absence of course packs would seriously compromise access to education.
“While foreign publishers claim that almost all educational titles have lower priced Indian editions, our empirical research shows this to be false. The vast majority of legal and social science titles that we surveyed had no equivalent Indian editions, and had to be purchased at prices equivalent to or higher than in the West. The lower priced Indian editions were often older and outdated.” – Shamnad Basheer, writing in SpicyIP, one of India’s leading blogs/repositories on intellectual property (IP) and innovation law/policy.
STUDENTS, FACULTY AND AUTHORS MOBILIZED
The case resonated strongly with the student and academic communities. Two new groups were formed, the Association of Students for Equitable Access to Knowledge (ASEAK) and the Society for Promotion of Equitable Access to Knowledge (SPEAK). Both groups were admitted as interveners in the case in support of the defendants.
Student engagement has continued, increasing awareness among the next generation for fair access to knowledge.
In addition, over three hundred academics from all over the world, including 33 authors whose works were listed in court documents as being included in the course packs, wrote to the three publishers asking them to withdraw the lawsuit. The letter was submitted to the court in pleadings by the defendant.
COPYRIGHT JURISPRUDENCE ADVANCED
The case has advanced copyright jurisprudence in India.
The making of course packs for educational purposes is allowed by law.
The court’s reasoning in the judgments was based on the socio-economic context of India, the realities of the education system, and the progress afforded by modern technology. These are welcome developments that will enable the law to adapt to new situations and current needs of Indian society.
August 2012: Oxford University Press (OUP), Cambridge University Press (CUP) and Taylor & Francis issue legal proceedings against Delhi University and Rameshwari Photocopy Service
October 2012: Interim injunction issued against Rameshwari Photocopy Service restraining sale of course packs.
March 2013: 33 authors of works cited in court documents write to publishers asking them to withdraw the case.
September 2016: judgment issued by Justice Rajiv Sahai Endlaw, Delhi High Court; injunction on Rameshwari Photocopy Service lifted.
October 2016: Publishers file appeal against Justice Endlaw’s decision.
December 2016: Appeal rejected by Delhi High Court Division Bench Justices Pradeep Nandrajog and Yogesh Khanna.
April 2017: Indian Reprographic Rights Organization (IRRO) (that intervened in the lower case) files appeal to the Supreme Court.
FIND OUT MORE
Anubha Sinha in The Wire: Delhi High Court’s Ruling Against Publishers is a Triumph For Knowledge
SpicyIP Delhi University photocopy case