[A2k] 1709 blog: Academic publishing houses lose appeal against Delhi University & photocopy shop

Manon Ress manon.ress at keionline.org
Tue Dec 13 09:15:12 PST 2016


>From the always excellent 1709 blog

Academic publishing houses lose appeal against Delhi University & photocopy
shop

http://the1709blog.blogspot.com/2016/12/academic-publishing-houses-lose-appeal.html

We are reposting this excellent article by Prashant Reddy (details at the
end of the post) first published on the IPKat

Academic publishing houses, OUP and CUP have suffered yet another defeat in
their litigation against Delhi University and a photocopy shop when a
Division Bench of the Delhi High Court ruled against them in an appeal on
December 9, 2016.

The crux of the lawsuit was whether the practice of photocopying
copyrighted material and compiling them in course-packs was copyright
infringement under Indian law. Given that universities and students have
been photocopying copyrighted material for several years without any
restrictions, the lawsuit had provoked an angry backlash from students and
academics – both of whom then organised themselves into an association and
intervened in the case.

The first round 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 use was covered under Section 52(1)(i) of the
Copyright Act, 1957. This provision states that the following acts shall
not be considered as an infringement of copyright:
“the reproduction of any work—(i) by a teacher or a pupil in the course of
instruction”.
The end goal of the publishers was to introduce a licensing system in
Indian universities and charge them a royalty for photocopying copyrighted
material that were compiled into course packs.

The second round of litigation began with an appeal filed by the publishers
before a Division Bench of the Delhi High Court. In its judgment the
Division Bench set aside the judgment of the Single Judge and remanded the
matter for trial on two issues.
Quantitative and Qualitative restrictions on photocopying for the purpose
of instruction
On the point of law however the Division Bench has broadly concurred with
the Single Judge and has ruled that the language of Section 52(1)(i) does
not impose any quantitative or qualitative restrictions when a work is
being used for educational purposes. According to the Division Bench, the
only issue to be determined while claiming this exception under Section
52(1)(i) is whether the “inclusion of the copyrighted work in the
course-pack was justified by the purpose of the course-pack”. As per the
court this was an issue to be determined at trial with expert evidence
although as far as I know there was no factual dispute on this issue of the
course packs being relevant to the course. It is not clear how a judge is
going to decide the relevance of readings to a particular course since
that’s the teacher’s prerogative – what one teacher may consider relevant
another may not.

The second issue remanded for trial was whether the photocopying of entire
textbooks was permissible since apart from the course-packs, the
photocopying shop was also found to be photocopying entire textbooks.
However given the court’s ruling that there are no quantitative
restrictions on photocopying under Section 52(1)(i), the photocopying shop
merely has to argue that the textbooks were being photocopied by students
as a part of their course-work.
Photocopying through an agent
On the issue of whether Section 52(1)(i) allows for reproduction only in
the classroom or whether it can be extended to photocopying through an
external photocopier, the court ruled against the publishers. The
publishers had tried arguing that the provision had to be confined to
classroom teaching and external photocopying done through the Rameshwari
photocopy shop would not be covered. The court however disagreed, stating
that the core issue was reproduction of a work through photocopying. The
issue of photocopying through an agency was thus deemed “irrelevant” by the
court.
Liability of Delhi University for the actions of the photocopier shop
A secondary issue in this case was Delhi University’s liability for the
acts of Rameshwari photocopying shop. Rather than dismiss this claim on the
grounds that copyright infringement had not been established, the court
dismissed this claim on the grounds that the University had no role to play
since the academic council’s action was restricted to setting the course
curriculum leaving it to the teachers to decide the reading material. It
appears that the Court completely failed to understand the issue at hand
because teachers are still employees of the University and the issue at
question was one of knowledge regarding the actions of the photocopying
shop i.e. was the University aware of the actions of the photocopy shop?
8% of book or an entire work: How much exactly was being photocopied?
One of the key problems with the publisher’s strategy in this case is that
they presented the material being photocopied in terms of percentage of
each book from which the material was taken. For example before the Single
Judge they argued that quantities of copyrighted books copied ranged from
8% to 33%, while the Division Bench calculated that on average 8% had been
copied from the 23 books that were at dispute. These calculations are
incorrect because most of the 23 books in question were compilation of
essays or articles by different authors on a similar theme. In such cases,
each essay or article is counted as an individual copyrighted work under
the law. Therefore when one essay or article is photocopied from one book
for inclusion in a course-pack, an entire copyrighted work is being
reproduced.

Framing the argument in terms of percentage of a book weakened the case of
the publishers especially when they were trying to argue that a
‘substantial part’ of each book was being photocopied. The phrase
‘substantial part’ is found in Section 14 of the Copyright Act which
explains that a copyright authorises the owner of a copyright to control
the use of a work or ‘substantial part’ of a work.
Foreign precedent and Indian copyright law
One of the many perils of being a former colony of the UK is our
over-reliance on foreign legal precedent, often without understanding the
context. The danger of this approach cannot be overstated in the context of
copyright law. The Indian Copyright Act, 1957 is fundamentally different
from most common law jurisdictions because of its heavy reliance on
compulsory licensing after the Paris Revision of the Berne Convention in
1971 – these CL provisions are absent from the copyright legislation of
most common law jurisdictions, especially developed countries like the US
and UK.

Similarly on the issue of exceptions and limitations under Section 52, we
have some provisions which use the phrase ‘fair dealing’ and several others
omit the phrase ‘fair dealing’ giving them the flavour of complete
exceptions. Given these unique characteristics of Indian copyright law it
is necessary for the Indian bar and bench to be careful while using foreign
terminology or case law. Unfortunately that is not the case in India.

The IP bar, especially at the Delhi High Court, indiscriminately cites
foreign precedent in IP cases resulting in an IP jurisprudence that is a
train-wreck. For example, some judges of the Delhi High Court have granted
punitive damages in copyright and trademark cases by citing utterly
irrelevant American judgments, when neither Indian copyright or trademark
law provide for punitive damages.
In the current photocopying case, the publishers apparently tried arguing
in favour of reading in the American style four-factor ‘fair use’ analysis
in order to convince the court to limit the quantity that could be copied
under Section 52(1)(i). This is a surprising line of argument because
copyright owners are usually terrified of the American style fair use
analysis due to the high degree of discretion left to judges. Clearly the
publishers arguing this case thought otherwise and maybe Indian lawmakers
should consider incorporating such an exception into the Indian statute.

Although the Division Bench rejected the publisher’s argument on the
American style fair use exception and also expressed caution against
relying on foreign case law, it thought nothing of devoting reams of pages
in its judgment towards discussing an old copyright case from New Zealand
because the provision at dispute in that case was similar (not identical)
to Section 52(1)(i). However the context of New Zealand’s copyright law is
entirely different from Indian copyright law since the former has never had
the equivalent of Section 32A of the Indian Copyright Act – which is a wide
ranging compulsory licensing provision introduced in 1983 for the purpose
of making available copyrighted works for educational purposes at a
reasonable price.

As I argued in an earlier post on IPKat, a wide reading of Section 52(1)(i)
results in providing a carte blanche for reproducing copyrighted material
for educational uses and would render Section 32A redundant – the
principles of statutory interpretation require judges to reconcile apparent
conflicts in a harmonious manner. It is impermissible to interpret one
provision in a manner which renders another provision of the same law
redundant. For whatever reasons, the publishers did not take this line of
argument before the Delhi High Court.

The writer is co-author of a forthcoming book to be published by OUP –
Create, Copy, Disrupt: India’s Intellectual Property Dilemmas (with Sumathi
Chandrashekaran) and is a Research Associate at ARCIALA, School of Law,
Singapore Management University.

Posted by Ben
-- 
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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