While many have welcomed the judgment on copyright violations, some have serious reservations about it. Here are three of them
By Sampad Patnaik
One of the main arguments of the defendants in the copyright case reads: “Students would be reluctant to buy the entire publication just for reading a particular chapter/extract therein and cannot afford to buy 35 to 40 books, portions of which are prescribed in the syllabi and/or suggested for reading”. It is this argument, which has made the judgment appear favorable to the interests of students. However, the inclusion of students into this argument is actually the insertion of a phantom party. The term “phantom party” in the context of this trial means a party that is not actually a stakeholder in the outcome.
At no point in the trial were the plaintiffs (the publishers) expecting students to pay for these books. It is expected that institutions like Delhi University (DU) and Delhi School of Economics (DSE), charging fees for education and having themselves included these texts in their own syllabi, are expected to purchase and store multiple copies of such texts. The most well-stocked university libraries worldwide such as Oxford and Cambridge follow this convention. Many Indian universities do or are expected to do the same. It is common sense that if a university prescribes a text, it is expected to stock it in its library in adequate numbers.
No university library is expected to keep a copy per student for a prescribed text, but a sufficient number that can be shared by the students is expected. Certainly, this may mean that students have to manage their study hours and strategies to access books, but management within limited resources is an essential part of higher learning.
2. Protecting profit siphoning and capping profit making
The Delhi High Court has protected the profits of the photocopier at DSE and DU, while capping the profits of the publishers. Both parties are part of the same education business. DU and DSE, which are obligated to buy more copies of the books they have themselves included in syllabi, are making profits by reducing expenses involved in buying books for their students. Rameshwari Photocopy Shop is making profits copying the books on a regular basis; it gets large orders precisely because the extracts are included in coursework and students have no option but to buy copies.
It is expected that institutions like Delhi University (DU) and Delhi School of Economics (DSE), charging fees for education and having themselves included these texts in their own syllabi, are expected to purchase and store multiple copies of such texts.
So, while profit-siphoning on the part of the defendants is protected, profit-making of the publishers is not.
3. The risky path towards unregulated corporate personhood
Last, but not least, the Court has stretched the interpretation of the exemption in the Indian Copyright Act, by substituting “institutions” in place of teachers. As per the terms of the Act, a teacher allowing a student to make a copy of a book for specific queries or research requirement is not infringement of copyright.
This situation is starkly different from institutions, DU and DSE, encouraging photocopying on a regular basis because they do not wish to invest in learning resources.
Rameshwari Photocopy Shop is making profits copying the books on a regular basis; it gets large orders precisely because the extracts are included in coursework and students have no option but to buy copies.
“Teachers” cannot be the same as “institutions”. By drawing this equivalence between the individual and the collective, the Delhi High Court has opened the Pandora’s Box of “corporate personhood”. This legal concept, widely controversial in the US, has allowed corporations to have a right to free speech just like citizens. This has led to unlimited corporate money in electoral politics in the US, thereby undermining democracy.
Interest groups favoring the judgment have implied that even if the profits of the publishing industry take a hit, a dent in private profits is of lesser importance than the social advantages of disseminating knowledge without cost barriers. However, these interest groups overlook the reality that the disadvantage from this verdict is not restricted to private profit of the publishing industry. For example, if publishers fail to make money on quality research on Indian economics, they will no longer be eager to commission or fund such studies.
former Legislative Assistant to a Member of Parliament