Dwijen Rangnekar
Reposted with author’s permission from the Socio-Legal Newsletter
Concern about access to educational materials has regularly been in the news. Whether it is the ‘cost of knowledge’ campaign focusing on Elsevier’s blanket licence policy[1] or the suicide of Aaron Swartz.[2] Also significant was Harvard University’s announcement that it couldn’t afford the price hike demanded by journal publishers.[3] For that matter, initiatives like those contained in the Finch Report have invited criticism that they divert research monies – already a dwindling resource – as ‘article processing charges’ whilst not dealing with the problem of blanket licences.
These struggles are legion; yet, I want to shift attention to the analogue world of books and photocopied course packs. The case in Delhi High Court has Oxford University Press (OUP), Cambridge University Press and Taylor and Francis litigating Delhi University and Rameshwari Photocopy Services for copyright infringement. Not only is the thought of a university press litigating a university problematic; but, this case comes with a fair dose of colonial-era inequities.
Much of the petition is directed at Rameshwari Photocopy Services, which is alleged to engage in ‘cover-to-cover’ copying and preparing ‘unauthorised compilations’, which are ‘stocked . . . for immediate sales’. For that matter, faculty aren’t spared any opprobrium, for they are ‘directly encouraging students to purchase course packs instead of legitimate copies’. Moreover, outlining a ‘nexus’ between the library and Rameshwari, the petition alleges that the library ‘stands to illegally profit’ and sees a ‘clear case of profiteering’. Urging swift action to contain their ‘insurmountable and incalculable’ loss at the start of the academic term, the petitioners were successful in securing an interim injunction in October 2012. Ultimately, the petition seeks to argue that course packs do not constitute fair dealing and has the ambition of introducing a reprographic licence system; thus, the right in copyright is limited by and hostage to exceptions.
The Berne Convention houses exceptions that ‘permit the reproduction of such works in certain special cases’ (Art. 9(2)) and ‘certain free uses of work’ for ‘teaching, provided such
utilization is compatible with fair practice’ (Art 10(2)). Not only are there no prescribed limits, Berne also leaves it to national governments to define ‘fair practice’. And, India’s Copyright Amendment Act 2012 in s 52 spells out a number of a statutory exceptions, such as fair dealing of any work, excluding computer programs, for the purposes of private or personal use, including research (s 52(1)(a)). Further, there is an ‘educational use’ exemption that allows for the reproduction of any work by a teacher or a pupil in the course of instruction (s 52(1)(i)). The petition seeks to read the provisions in a very narrow sense: in that the physical act of making the copy was not performed by either the student or the teacher. However, it is quite easy to see course packs as secure in these statutory exceptions.
Prompted by the petition, which finds that ‘extracts from a single publication form part of different course-packs’, the case has attracted discussion on the amount of a work that is copied. To an extent, this is a false question as neither domestic statutory exceptions nor international law prescribe specific quantitative limits. In contrast, this may exist in ‘fair use’ jurisdictions like the USA, where 17 USC § 107 requires several assessments, including the amount of the work used and the effect of this on the potential market for the work. Case law in the early 1990s witnessed course packs as a breach of this – partly as they were produced by for-profit corporations. Consequently, the architecture of payment mediated, through copyright clearance agencies, a 10 per cent guideline amount for photocopying.
Even on this non-issue as far as India is concerned, a variety of commentators have scoured the course packs to find that of the 19 books, 11 were below this threshold of 10 per cent. Course packs have a particular logic – they are not some random collection of articles, nor an unintended assemblage, but a playlist of selected reads for specific instruction. For that matter, readers are invited to peruse the course packs implicated here – and may find something to copy and be inspired by. With inadequately stocked libraries, books priced well beyond the reach of the average student, the absence of local editions and insufficient distribution channels across the country, photocopying is the only available means of circulating educational material.
Delhi University, in its written submission, notes these logistics of the publishing market, which necessitate photocopied course packs. In this respect, studies on the comparative cost of educational material establish two striking facts: first, the absolute price of books in the South tends to be higher than in the North; and, secondly, that consumers in the South contribute a higher share of their incomes for books. The estimated cost of one of the course packs at INR82,000 places it at 20 per cent above the Indian per capita income.
Yet, course packs are more than just carefully curated playlists. They reflect the obligation of duty of academics and academia. In a public petition, faculty members, many of them authors for these publishing houses, explain that ‘course-packs . . . ensure that students have access to the most relevant portions of the book without which [their education] would be seriously [compromised]’. Framing course packs as piracy, as OUP’s petition alleges, is what Margaret Chon calls a ‘topdown’ approach and ‘represents a failure in access to essential learning materials’.
The publisher’s petition argues that these actions are ‘licensed the world over by Reprographic Rights Organisation . . . on payment of a nominal license fee’. Soon after the Delhi High Court interim injunction in October 2012, news circulated of a leaked letter from one of the lawyers representing the publishers, which announced this as a ‘test case’ and that the order would ‘pave the way for the Delhi University to formally negotiate a license from the IRRO’ (the Indian Reprographic Rights Organisation). One of the public claims made by IRRO is that the licence fee amounts to a mere two cups of tea or coffee per semester. Yet, doing the mathematics, this could work out at a 100 per cent increase in the cost of a course pack.
More could be said about how this solution seeks to limit fair dealing and educational use exceptions, or how it initiates the slippery slope of blanket licences, which brings this note back to the paradoxical situation where the struggle to lower the cost of educational material in the North has made some hesitant advances – while in the South prices are still beyond the reach of most ordinary students.
1 w http://thecostofknowledge.com/
2 w www.guardian.co.uk/technology/2013/jan/13/aaron-swartz
3 w www.guardian.co.uk/science/2012/apr/24/harvarduniversity-
journal-publishers-prices
Dwijen Rangnekar is associate professor in law at
the University of Warwick.
