While dismissing a plea by international publishers, a recent judgment from the Delhi High Court holds that photocopying portions of text books is a legitimate exercise if carried out for academic purposes
By Ajith Pillai
Does photocopying portions of an academic work by students or on behalf of them amount to infringement of copyright? On September 16, Justice RS Endlaw of the Delhi High Court delivered a 94-page landmark judgment in which he dismissed a plea filed in 2012 by Oxford University Press, Cambridge University Press and Taylor and Francis (Routledge) against Rameshwari Photocopy Shop in the Delhi School of Economics and Delhi University for infringement of copyright laws. The petitioners had demanded a compensation of Rs 60 lakh.
The publishers had also sought a permanent injunction restraining the two defendants from infringing the copyrights of “their publications by photocopying, reproduction and distribution on a large scale and circulating the same and by sale of unauthorised compilations of substantial extracts from publications by compiling them into course packs/anthologies for sale”.
The plaintiffs (the publishers) submitted to the court “four course packs being so sold containing photocopies of portions of publications varying from 6 to 65 pages”. It was further their case “that the said course packs sold by the defendant No.1 (the photocopy shop) are based on syllabi issued by the defendant No.2 University for its students and that the faculty teaching at the defendant No.2 University is directly encouraging and recommending the students to purchase these course packs instead of legitimate copies of plaintiffs’ publications”. It was also the case of the publishers that the libraries of the University are issuing books published by them to be photocopied.
DISMISSAL OF PLEA
The Court, while dismissing the plea, made some key observations of the Copyright Act and its application in the modern technologically advanced times. To quote: “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. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public.”
The Delhi High Court, while dismissing the plea, made some key observations of the Copyright Act and its application in the modern technologically advanced times. To quote: “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…”
The Court further held that “it is permissible for the defendant No.2 University to on purchasing book(s) and stocking the same in its library, issue the same to different students each day or even several times in a day. It is not the case of the plaintiffs that the said students once have so got the books issued would not be entitled to, instead of laboriously copying the contents of the book or taking notes there from, photocopy the relevant pages thereof, so that they do not need the book again”.
Not everyone agreed with the court ruling. Some would even think it may set a precedent which would discourage publishers from releasing their books in India. This, it was felt, would be a great setback for academic study in this country. Moreover, the judgment ignored the profits made by the photocopy shop (Go to Lordships, We Beg To Differ With Delhi High Court)
Ironically, when the publishers had approached the Court six years ago, it triggered protests from the student community and noted writers who author academic works. The latter came out in defense of the students and their right to photocopy and the University, the right to recommend students to buy course packs of books prescribed for additional reading.
The judgment seems to make a case for the right of students to copy portions of a book for the sole purpose of study. It does not see such copying as an offense. The Court also pointed out that the issue must be looked at in a different light in this day and age.
Press reports at that time indicated that 300 academics wrote a letter to the publishers urging them to withdraw their case. Among those who supported the students was Nobel laureate Amartya Sen. Nivedita Menon, professor at JNU, was quoted on the Al Jazeera website as saying: “The number of academics who’ve signed the petition should be clear indication that authors do not share these concerns (of the publishers). We want our works to be available as widely as possible. The action is entirely to do with profit, and nothing to do with the authors, whose living expenses are met by the publicly funded university system, not piddly royalties.”
Others too joined the chorus. Thomas Metcalf, a professor emeritus at the University of California, Berkeley, was quoted on the same website as stating: “As an author whose writings appear to have triggered this controversy, I am happy to accept smaller royalties on sales of my books to widen the audience, especially in a developing country such as India.”
INFRINGEMENT AND TECHNOLOGY
The Delhi High Court judgment seems to make a case for the right of students to copy portions of a book for the sole purpose of study. It does not see such copying as an offense. Having established this by quoting from the Copyright Act, it goes on to say: “It cannot be lost sight that Section 63 of the Copyright Act constitutes infringement of copyright, an offence punishable with imprisonment for a term not less than six months and extendable to three years―and with a fine. (But) 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.
The stand of Association of Students for Equitable Access to Knowledge reflects what the larger student community feels on the issue. Its statement says:…”Photocopying, then, is just a quick fix in a system which is unable to meet simple demands of students studying in universities. In this situation, to put restrictions and further try to control and profit from a system which in itself is ramshackle and can hardly be afforded by a majority of students is pure evil.”
“In the times when I was studying Law, the facility available of photocopying was limited, time consuming and costly. The students then, used to take turns to sit in the library and copy by hand pages after pages of chapters in the books suggested for reading and subsequently make carbon copies…. However, with the advancement of technology the voluminous books also can be photocopied and at a very low cost. Thus, the students are now not required to spend day after day sitting in the library and copying pages after pages of the relevant chapter of the syllabus books. 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.”
The Court also pointed out that the issue must be looked at in a different light in this day and age. Justice Endlaw observed that cell phone cameras could be employed by students to copy pages of a book. It could then be printed out, viewed on a larger screen or shared with others. This action, he noted “would again qualify as fair use which cannot be stopped”.
The Association of Students for Equitable Access to Knowledge (ASEAK) which was permitted by the Court to become a defendant, is naturally happy with the ruling. Its president, Apoorva Gautam and general secretary Usman Jawed Siddiqi, in a joint statement, have called the judgment a “victory for students and access to knowledge”.
RESOURCE CRUNCH
ASEAK’s take reflects what the larger student community feels on the issue. “Sure, publishers are running profit-making enterprises but universities are not a market. Students pursuing higher education in India come from starkly different socio-economic backgrounds and further, most public universities work with a severe resource crunch. This is worsened by the high costs and very limited reach of academic books which the publishers anyway do not seem to be producing for students. They only make it to libraries and shelves of highly-paid academics. Photocopying, then, is just a quick fix in a system which is unable to meet simple demands of students studying in universities. In this situation, to put restrictions and further try to control and profit from a system which in itself is ramshackle and can hardly be afforded by a majority of students is pure evil,” says its statement.
The student organization also rejected the publishers’ argument that spending money “to purchase books will amount to nothing more than a couple of extra coffees or a Dominos pizza”. It pointed out that books cost thousands of rupees and cannot be afforded by a vast majority of students who come from economically weaker sections. Such classist thinking, it said, “tries to simply erase the experience of the many who struggle against severe odds just to make it to the institutions of higher education in our country. Moreover, it is uncomfortably at peace with the idea that higher education may only be restricted to the rich”.
It is not clear whether the publishers will appeal against the Delhi High Court judgment. But the copyright issue has become a widely discussed one on the University campus as well as in social media. For now, students can rest assured that photocopying is their legitimate right, provided it is for academic purposes.
Lead Picture: (L-R) Delhi High Court; Rameshwari Photocopy Shop in the Delhi School of Economics which was at the center of the publishing storm (Photo: Anil Shakya)