In 2012, a few leading academic publishers of
the world which include The Oxford University Press, The Cambridge University
Press and Taylor & Francis Group (The Plaintiffs), instituted a case
against a Photocopying shop at Delhi University premises before the Delhi high
court. The photocopying shop, Rameshwari Photocopy services had been authorised
by the University to photocopy certain books of the plaintiffs and provide
course packs to the students at a cost. The plaintiffs alleged that this act
constituted infringement, an act the Delhi University sanctioned by providing
reading list as well as allowing the photocopier to use the books from their
library.
The copyright law has provisions which allow
fair dealing of copyrightable material. These include provisions allowing a
teacher or a pupil to use in the course of instruction, for review or reporting,
or limited publication, among various others.
The plaintiffs relied on established cases in
the west as well as the TRIPS and Berne Convention to plead that the rights of
authors of copyrightable material should not be prejudiced by municipal laws
and contended that the University should have applied for a license from the Indian
Reprographic Rights Organization (IRRO) as the act of photocopying is competing
with their business and infringing their copyrights. The University as well as
Rameshwari photocopy admitted to copying
portions of the books but also contended that the reproduction of these books
were meant for specific students only and was covered in fair dealing as the
students would not be able to afford the books individually.
The Division Bench of the Delhi
high court decided this matter in appeal in favor of the defendants and held
that copyrights are not natural rights, but are in fact given to the authors by
legislation. The rights under the copyright law in India are given equally to
the authors as well as the public. The court held that the term ‘in the course
of instruction’ should be seen in its widest connotation and course packs
designed by the teachers and provided by the photocopier should be included in
the fair dealing scope.
While the publishers insisted
that they are losing business because of the course packs, the university and
the students pleaded that they should be allowed to photocopy the material to
an unlimited extent, because the publishers didn’t lose their business and in
fact the course packs encouraged the students to buy the books. None of the
parties seem to have shared any data supporting their stand.
The court could not have fixed a
percentage of material from the books which should be allowed to be copied
without inviting any copyright infringement concerns as that would amount to
legislating. So, it interpreted the provisions of the Indian Copyright Act,
1957 in the broadest way keeping in view the principle of the act which is
Copyright, specially in literary works , is
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.
Commentators
have hailed the decision of the court as allowing ‘poor students’ access to
information, one thing that skips consideration is that the copyright act of
India does not define fair dealing properly. If interpreted strictly, fair
dealing should be an exception and number of copies and extent of copies of the
material in the book should be pre-defined to ensure that the commercial
interests of the authors and publishers are not unduly infringed. One possible
misuse of the interpretation of law in the present case could be visualized like
this:
If course packs are actually
legal, this practice would encourage Universities to buy lesser number of
copies of the books than actually required. It will also be very difficult to
determine whether the course packs are being used only by students. If the
market for these books is academia of the country and they have been given a
free hand to infringe any amount of the text from a book as long as it is not a
cover to cover copy, such wide interpretation has the potential to kill the
copyrights of all authors and publishers.
Absence of quantifiable data
makes it impossible to predict which of the two outcomes would be correct –
that whether the publishers actually suffer losses or not. Another important
feature is absence of clarity in the written law. If the judges are made to
guess the intent of the law keeping into the view the international conventions
and norms, it leads to subjective reading of the same law. For example, the
interpretation of the same high court of the term ‘fair use’ in the case of
India TV Independent News Service
Pvt.Ltd. & Ors. vs. Yashraj Films Pvt.Ltd (India TV case) was rejected
by the present division bench in this judgment. In the India TV case, the established principles
of determination of ‘fair use’ in American jurisprudence were accepted and
applied to determine whether copyright infringement of a song occurred. These
principles are:
(i)
the purpose and the character of the use,
including whether such use is of a commercial nature or is for non-profit
educational purposes;
(ii)
the nature of the copyrighted work;
(iii)
the amount and substantiality of the portion
used in relation to the copyrighted work as a whole; and
(iv)
the effect of the use upon the potential market
for or value of the copyrighted work.
In the present case however, the
judge’s noted that ‘general principle’ of fair use would be read into the
clause and considered only the purpose of the act alleged to be infringement in
making a decision.
Leaving interpretation of vague
laws to the judges increases confusion in the public and could take years for
an issue to be finally decided by the Supreme Court. The parliament needs to
update the outdated laws on which the courts are facing dilemmas through a
detailed analysis of the situation as well as deliberation. A clear law could
avoid cases similar to the present one entering the judiciary and make
administration of justice more accessible to citizens of the country.
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