[A2k] Anubha Sinha: COURSE PACKS FOR EDUCATION RULED LEGAL IN INDIA

Manon Ress manon.ress at keionline.org
Mon Jul 31 08:32:44 PDT 2017


http://eifl.net/blogs/course-packs-education-ruled-legal-india

Anubha Sinha: COURSE PACKS FOR EDUCATION RULED LEGAL IN INDIA
Supreme Court ruling a huge triumph for access to educational materials in
India

EIFL guest blogger: Anubha Sinha, Programme Officer on Openness and Access
to Knowledge at the Centre for Internet and Society India.

Posted by Teresa Hackett, Copyright and Libraries Programme Manager, July
12, 2017
On 9 May 2017, a five year court battle between publishers and universities
finally came to an end when the Supreme Court of India dismissed an appeal
by the Indian Reprographic Rights Organization (IRRO) challenging an
earlier judgment of Delhi High Court that ruled course packs in India legal
for educational purposes.

In a case that gained wide international attention, issues such as the cost
of textbooks in India were raised, students agitated for fair access to
educational materials, and the jurisprudence on copyright in India has
taken a leap forward. In this guest blog, Anubha Sinha, Programme Officer
on Openness and Access to Knowledge at the Centre for Internet and Society
India, discusses the judgment in the case known as the ‘Delhi University
photocopy’ case, and what it means for access to educational materials in
India.

THE FACTS OF THE CASE

In 2012, three academic publishers, Oxford University Press (OUP),
Cambridge University Press (CUP) and Taylor & Francis, sued the University
of Delhi (DU) and Rameshwari Photocopy Service (based at the university)
for copyright infringement for photocopying parts of their textbooks and
distributing them in course packs - collections of assigned reading
materials – exclusively to students for a fee.

The publishers sought to compel Delhi University to enter into a licensing
agreement with the Indian Reprographic Rights Organization (IRRO), that
manages certain rights on behalf publishers and other rightsholders in
India.

The course packs in question comprised excerpts from textbooks on course
syllabi at Delhi School of Economics (part of the University of Delhi). The
court analyzed the content of four packs that included works such as
Transforming India: Social and Political Dynamics of Democracy (OUP), New
Cambridge History of India (CUP) and Political Philosophy (Routledge/Taylor
& Francis).

The court found that on average 8.8% of the textbooks, that each cost on
average 39 USD (2,500 INR), were used in the course packs. Students and
faculty were charged a nominal fee of one US cent (40 paise) per page to
buy the course pack.

THE COURT’S JUDGMENT – NO INFRINGEMENT, NO LICENCE REQUIRED

In an interim order in 2012, the court issued a temporary injunction
restraining the sale of course packs by Rameshwari. However, the order was
overturned when in subsequent judgments (in September 2016 and an appeal
judgment in December 2016) the court ruled in favour of the University.

On whether the making of the course packs was a copyright infringement, the
court found no infringement because the activities fell under the education
exception in Indian copyright law (specifically section 52(1)(i)).


Delhi High Court ruled course packs for education legal. Photo credit: The
Indian Express
Section 52(1)(i) of the Indian Copyright Act (1957) allows any work to be
reproduced by a teacher or pupil for the purposes of instruction. In a
liberal interpretation of the provision, the court held that the
reproduction of a work is not limited to reproduction by an individual
teacher or pupil, it also extends to the action of multiple teachers and
students. Further, the court held that the phrase ‘course of instruction’
embraces any instruction for the duration of an entire course or teaching
programme, it is not limited only to teaching in the classroom.

On whether the university must obtain a licence to photocopy from IRRO, the
court held that no licence is required because the activities are covered
by Section 52(1)(i).

The court also found there to be no commercial exploitation of copyright in
the works.

During the case, the publishers tried to impute a profit motive on the part
of the defendants. They argued that by selling chapters of the books, the
defendants were in direct competition with publishers thereby creating an
adverse effect on the publishers’ market.

The court rejected the argument holding that students are hardly potential
customers for multiple books used in the course packs. For example,
post-graduate students might have 35-40 reading assignments per subject.

Without the course packs, students would simply look elsewhere for the
material, including the university library. In fact, the court noted that
increased access to education has the potential to expand the customer base
for such books in the future.

PRIMACY OF PURPOSE

Importantly, the court said fairness of use is to be judged only by its
intended purpose i.e. education, and not from any qualitative or
quantitative uses (such as which parts of the text are used or the number
of copies made).

The court’s judgment on appeal, that references case law from Canada, the
USA the UK and New Zealand, emphasizes that the determination of ‘fairness’
of a use rests solely on the “touchstone of the purpose of the use and/or
other limitations expressly built in each of these clauses”. Thus there is
no requirement to introduce other tests or factors when applying Section
52(1)(i) and so a general fair use principle is to be read into all such
provisions in the law.

THE CASE CONCLUDES

The High Court remained undecided on two points of fact: whether the works
included in the course packs were necessary for educational instruction,
and whether the photocopying of entire books is allowed under Indian law.
It decided to refer these issues for determination to a trial court.

However, the trial court hearing never proceeded because in March 2017 the
publishers decided to withdraw from the case, in a move that surprised
observers. A joint statement issued by OUP, CUP and Taylor & Francis
acknowledged the important role that course packs play in education, and
looked forward to working “even more closely with academic institutions,
teachers and students to understand and address their needs”.

In a further twist in April 2017, the Indian Reprographic Rights
Organization (IRRO) filed an appeal to the Supreme Court challenging the
High Court’s judgment.

On 9 May 2017, the Supreme Court summarily dismissed IRRO’s appeal.

IMPACT OF THE DELHI UNIVERSITY CASE

The ruling in the Delhi University case is a huge triumph for access to
educational materials in India over the interests of private copyright
holders.

The case shone a light on the socio-economic context of university level
education in India, in particular the cost of textbooks. Students became
advocates for access to knowledge, and the law on access to educational
materials in India has been advanced.

BOOK PRICES IN INDIA ARE AN ISSUE

A study submitted to the court showed that consumers in the global South
often have to commit significantly higher proportions of their income to
buy books because absolute book prices are far higher than in the global
North. For example, if consumers in the US had to pay the same proportion
of their income to purchase the Oxford English Dictionary, it would cost a
ludicrous 941.20 USD!

Not even university libraries can afford these prices. While libraries do
purchase multiple copies of textbooks, they cannot cater for the entire
student population that can ran into hundreds of students enrolled on an
individual course.

In addition, the latest editions are not always available to purchase in
India. So the absence of course packs would seriously compromise access to
education.

“While foreign publishers claim that almost all educational titles have
lower priced Indian editions, our empirical research shows this to be
false. The vast majority of legal and social science titles that we
surveyed had no equivalent Indian editions, and had to be purchased at
prices equivalent to or higher than in the West. The lower priced Indian
editions were often older and outdated.” - Shamnad Basheer, writing in
SpicyIP,  one of India’s leading blogs/repositories on intellectual
property (IP) and innovation law/policy.
STUDENTS, FACULTY AND AUTHORS MOBILIZED

The case resonated strongly with the student and academic communities. Two
new groups were formed, the Association of Students for Equitable Access to
Knowledge (ASEAK) and the Society for Promotion of Equitable Access to
Knowledge (SPEAK). Both groups were admitted as interveners in the case in
support of the defendants. (Check out the fun copyright jingle on Youtube).

Student engagement has continued, increasing awareness among the next
generation for fair access to knowledge.

In addition, over three hundred academics from all over the world,
including 33 authors whose works were listed in court documents as being
included in the course packs, wrote to the three publishers asking them to
withdraw the lawsuit. The letter was submitted to the court in pleadings by
the defendant.

COPYRIGHT JURISPRUDENCE ADVANCED

The case has advanced copyright jurisprudence in India.

The making of course packs for educational purposes is allowed by law.

The court’s reasoning in the judgments was based on the socio-economic
context of India, the realities of the education system, and the progress
afforded by modern technology. These are welcome developments that will
enable the law to adapt to new situations and current needs of Indian
society.

TIMELINE

August 2012: Oxford University Press (OUP), Cambridge University Press
(CUP) and Taylor & Francis issue legal proceedings against Delhi University
and Rameshwari Photocopy Service

October 2012: Interim injunction issued against Rameshwari Photocopy
Service restraining sale of course packs.

March 2013: 33 authors of works cited in court documents write to
publishers asking them to withdraw the case.

September 2016: judgment issued by Justice Rajiv Sahai Endlaw, Delhi High
Court; injunction on Rameshwari Photocopy Service lifted.

October 2016: Publishers file appeal against Justice Endlaw’s decision.

December 2016: Appeal rejected by Delhi High Court Division Bench Justices
Pradeep Nandrajog and Yogesh Khanna.

January 2017: Oxford students and academics urge OUP not to appeal to the
Supreme Court.

March 2017: Publishers announce their withdrawal from the case.

April 2017: Indian Reprographic Rights Organization (IRRO) (that intervened
in the lower case) files appeal to the Supreme Court.

May 2017: IRRO appeal dismissed by the Supreme Court.

FIND OUT MORE

Anubha Sinha in The Wire: Delhi High Court’s Ruling Against Publishers is a
Triumph For Knowledge

SpicyIP resource page: The Chancellor, Masters & Scholars of the University
of Oxford & Ors. v. Rameshwari Photocopy Services & Ors. [DU Photocopying
Case]





-- 
Manon Ress, Ph.D.
Knowledge Ecology International, KEI
manon.ress at keionline.org, tel.: +1 202 332 2670
www.keionline.org



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