Academic Publishing Houses Lose Appeal Against Delhi Academy & Photocopy Shop

We are reposting this first-class article past times Prashant Reddy (details at the goal of the post) get-go published on the IPKat

Academic publishing houses, OUP as well as CUP receive got suffered yet about other defeat inwards their litigation against Delhi University as well as a photocopy store when a Division Bench of the Delhi High Court ruled against them in an appeal on Dec 9, 2016.

The crux of the lawsuit was whether the do of photocopying copyrighted cloth as well as compiling them inwards course-packs was copyright infringement nether Indian law. Given that universities as well as students receive got been photocopying copyrighted cloth for several years without whatever restrictions, the lawsuit had provoked an angry backlash from students as well as academics – both of whom so organised themselves into an association and intervened inwards the case. 

The get-go circular of litigation ended in an emphatic defeat for the publishers when a Single Judge of the Delhi High Court dismissed the lawsuit on 16th September, without conducting a trial, on the grounds that photocopying for educational exercise was covered under Section 52(1)(i) of the Copyright Act, 1957. This provision states that the next acts shall non move considered every bit an infringement of copyright:

“the reproduction of whatever work—(i) past times a instructor or a pupil inwards the course of report of instruction”.

The goal goal of the publishers was to innovate a licensing organisation inwards Indian universities as well as accuse them a royalty for photocopying copyrighted cloth that were compiled into course of report packs. 

The instant circular of litigation began alongside an appeal filed past times the publishers before a Division Bench of the Delhi High Court. In its judgment the Division Bench fix aside the judgment of the Single Judge as well as remanded the affair for trial on ii issues. 

Quantitative as well as Qualitative restrictions on photocopying for the purpose of instruction

On the indicate of police pull nonetheless the Division Bench has broadly concurred alongside the Single Judge as well as has ruled that the linguistic communication of Section 52(1)(i) does non impose whatever quantitative or qualitative restrictions when a move is beingness used for educational purposes. According to the Division Bench, the only number to move determined spell claiming this exception nether Section 52(1)(i) is whether the “inclusion of the copyrighted move inwards the course-pack was justified past times the purpose of the course-pack”. As per the courtroom this was an number to move determined at trial alongside skillful prove although every bit far every bit I know at that spot was no factual dispute on this number of the course of report packs beingness relevant to the course. It is non clear how a guess is going to determine the relevance of readings to a particular course of report since that’s the teacher’s prerogative – what i instructor may catch relevant about other may not.

The instant number remanded for trial was whether the photocopying of entire textbooks was permissible since apart from the course-packs, the photocopying store was likewise found to move photocopying entire textbooks. However given the court’s ruling that at that spot are no quantitative restrictions on photocopying nether Section 52(1)(i), the photocopying store simply has to debate that the textbooks were beingness photocopied past times students every bit a purpose of their course-work. 

Photocopying through an agent 

On the number of whether Section 52(1)(i) allows for reproduction only inwards the classroom or whether it tin move extended to photocopying through an external photocopier, the courtroom ruled against the publishers. The publishers had tried contention that the provision had to move confined to classroom teaching as well as external photocopying done through the Rameshwari photocopy store would non move covered. The courtroom nonetheless disagreed, stating that the center number was reproduction of a move through photocopying. The number of photocopying through an way was therefore deemed “irrelevant” past times the court.

Liability of Delhi University for the actions of the photocopier shop

A secondary number inwards this instance was Delhi University’s liability for the acts of Rameshwari photocopying shop. Rather than dismiss this claim on the grounds that copyright infringement had non been established, the courtroom dismissed this claim on the grounds that the University had no role to play since the academic council’s activity was restricted to setting the course of report curriculum leaving it to the teachers to determine the reading material. It appears that the Court completely failed to empathize the number at manus because teachers are soundless employees of the University as well as the number at inquiry was i of cognition regarding the actions of the photocopying store i.e. was the University aware of the actions of the photocopy shop? 

8% of majority or an entire work: How much just was beingness photocopied? 

One of the key problems alongside the publisher’s strategy inwards this instance is that they presented the cloth beingness photocopied inwards terms of percent of each majority from which the cloth was taken. For instance before the Single Judge they argued that quantities of copyrighted books copied ranged from 8% to 33%, spell the Division Bench calculated that on average 8% had been copied from the 23 books that were at dispute. These calculations are incorrect because close of the 23 books inwards inquiry were compilation of essays or articles past times dissimilar authors on a similar theme. In such cases, each essay or article is counted every bit an private copyrighted move nether the law. Therefore when i essay or article is photocopied from i majority for inclusion inwards a course-pack, an entire copyrighted move is beingness reproduced. 

Framing the declaration inwards terms of percent of a majority weakened the instance of the publishers peculiarly when they were trying to debate that a ‘substantial part’ of each majority was beingness photocopied. The phrase ‘substantial part’ is found inwards Section xiv of the Copyright Act which explains that a copyright authorises the possessor of a copyright to command the exercise of a move or ‘substantial part’ of a work. 

Foreign precedent as well as Indian copyright law 

One of the many perils of beingness a quondam colony of the Great Britain is our over-reliance on unusual legal precedent, oft without agreement the context. The danger of this approach cannot move overstated inwards the context of copyright law. The Indian Copyright Act, 1957 is fundamentally dissimilar from close mutual police pull jurisdictions because of its heavy reliance on compulsory licensing afterward the Paris Revision of the Berne Convention inwards 1971 – these CL provisions are absent from the copyright legislation of close mutual police pull jurisdictions, peculiarly developed countries similar the U.S. as well as UK.

Similarly on the number of exceptions as well as limitations nether Section 52, nosotros receive got about provisions which exercise the phrase ‘fair dealing’ as well as several others omit the phrase ‘fair dealing’ giving them the flavor of consummate exceptions. Given these unique characteristics of Indian copyright police pull it is necessary for the Indian bar as well as bench to move careful spell using unusual terminology or instance law. Unfortunately that is non the instance inwards India. 

The IP bar, peculiarly at the Delhi High Court, indiscriminately cites unusual precedent inwards IP cases resulting inwards an IP jurisprudence that is a train-wreck. For example, about judges of the Delhi High Court have granted punitive damages in copyright as well as trademark cases past times citing utterly irrelevant American judgments, when neither Indian copyright or trademark police pull supply for punitive damages.    

In the electrical flow photocopying case, the publishers champaign tried contention inwards favour of reading inwards the American trend four-factor ‘fair use’ analysis inwards firm to convince the courtroom to bound the quantity that could move copied nether Section 52(1)(i). This is a surprising employment of declaration because copyright owners are unremarkably terrified of the American trend fair exercise analysis due to the high grade of discretion left to judges. Clearly the publishers contention this instance idea otherwise as well as perchance Indian lawmakers should catch incorporating such an exception into the Indian statute. 

Although the Division Bench rejected the publisher’s declaration on the American trend fair exercise exception as well as likewise expressed caution against relying on unusual instance law, it idea cipher of devoting reams of pages inwards its judgment towards discussing an old copyright instance from New Zealand because the provision at dispute inwards that instance was similar (not identical) to Section 52(1)(i). However the context of New Zealand’s copyright police pull is only dissimilar from Indian copyright police pull since the quondam has never had the equivalent of Section 32A of the Indian Copyright Act – which is a broad ranging compulsory licensing provision introduced inwards 1983 for the purpose of making available copyrighted plant for educational purposes at a reasonable price. 

As I argued inwards an earlier postal service on IPKat, a broad reading of Section 52(1)(i) results inwards providing a card blanche for reproducing copyrighted cloth for educational uses as well as would homecoming Section 32A redundant – the principles of statutory interpretation involve judges to reconcile apparent conflicts inwards a harmonious manner. It is impermissible to translate i provision inwards a mode which renders about other provision of the same police pull redundant. For whatever reasons, the publishers did non accept this employment of declaration before the Delhi High Court. 

The author is co-author of a forthcoming majority to move published past times OUP – Create, Copy, Disrupt: India’s Intellectual Property Dilemmas (with Sumathi Chandrashekaran) as well as is a Research Associate at ARCIALA, School of Law, Singapore Management University.