In a milestone decision on September 16 Mr. Justice R. S. Endlaw (what a great name for a judge; reminds me of my high school typing teacher, Mr. Keys) of the Indian High Court, in the case of publishers Oxford University Press (OUP), Cambridge University Press (CUP) and Taylor & Francis versus Rameshwari Photocopying Services and Delhi University, ruled that the photocopying of course packs by Rameshwari does not constitute copyright violation under India’s Copyright Act owing to the fair dealing exception for education. The decision vacated a stay order imposed in 2013 restraining the copy shop’s activities. The decision has generated considerable commentary in India, almost all of it supporting the right of students to photocopy with virtually no restriction because of their straightened economic circumstances and painting it as a “David and Goliath” case. There is also an Indian “us” versus “them” odour to this, with the “them” being western publishing houses. There is jubilation on the part of both the student advocacy group that joined the case, as well as a group of academics that supported the university’s position. But this could be a pyrrhic victory over the long term.
The publishers argued that Section 52 of the Act, which provides an exception for education (the exact wording is that the reproduction of a work by a “teacher/ pupil in the course of instruction” does not constitute infringement), should be more narrowly interpreted so as to disallow widespread institutional copying of copyrighted material from textbooks. The judge reached his decision despite the existence of reprographic licensing services (which would have legitimized copying by Delhi University students for a nominal fee). He also appears to have imposed no limits on the amount of copying as long as it is done for educational purposes. The university argued that it was not obliged to pay the IRRO, the Indian Reprographic Rights Organization, for access to copyrighted materials because all the copying fell under the education exception, and was thus a fair dealing.
After the court’s decision, the publishers issued the following statement;
“We brought this case to protect authors, publishers and students from the potential effects on the Indian academic and educational book market caused by the widespread creation and distribution of unlicensed course packs by a copy shop operating from within the premises of the [Delhi] University, where a legitimate and affordable licensing scheme is already in place. It is unfortunate that the court’s decision today could undermine the availability of original content for the benefit of students and teachers.”
That of course is the crux of the issue. What is the balance between providing uncompensated access to copyrighted material for specified purposes, such as education, and the need to provide authors and publishers the incentive and wherewithal to continue to produce new content? Already it seems some are starting to realize that a decision of this nature, popular as it may be, is not a silver bullet. An editorial in the influential daily The Hindu, makes the point that “the verdict may justly raise the concern whether conferring unrestricted reprographic rights on academic institutions will drive reputed publishers out of the field of education…If reputed publications feel that there is insufficient copyright protection and back out of educational publishing in this country, it will be equally injurious to the public interest”. They are right.
It is also hard to understand how the judge came to the conclusion that unlimited copying does not run afoul of the three-step test of the Berne Convention and the TRIPs provisions of the WTO, to which India subscribes. (The three-step test states that limitations should apply only in certain special cases; should not conflict with the normal exploitation of the work; and should not unreasonably prejudice the legitimate interests of the author/right-holder.) How unlimited copying–even for educational purposes–does not unreasonably prejudice the legitimate interests of the rights holders is hard to understand, but India has always been good at interpreting its international obligations in unusual ways.
While the Delhi University case may seem to be a throwback to the days when photocopying on campuses was rampant, and brings back memories of the Kinko’s and Michigan Document Services cases in the US in the 1990s (where both were found liable for copyright infringement for commercially photocopying course-packs), it is in fact another variant of a common theme being played out these days in various countries. Textbook copying used to be ubiquitous in most of Asia and I well remember the “poksa” copy shops that used to be set up at the entrance to every university in Korea, ready to photocopy and even bind books of every description. Even today, that phenomenon has not entirely disappeared, as is evident from the IIPA’s section 301 filings on Taiwan and China, but in many cases technology has made the copy shop go away as digital copies have filled the void.
Not so in India which, despite its reputation as an IT hub for back office work, still operates as if it were back in the days of the Raj in many instances. Paper is still king in India, from dusty files in bureaucrat’s offices to physical copies of books in libraries. Access to the limited supply of textbooks is one of the key issues in Indian education (digital copies being generally unavailable), and it is interesting to note that one of the rationales for allowing photocopying cited by Mr. Justice Endlaw was his view that photocopying is a substitute for the transcribing by hand from books that he experienced as a student. In doing so he took an expansive view of the definition in the Act that allows a teacher or pupil in the course of instruction to make a copy, extending the right to a copy shop on campus licensed by (and apparently acting on behalf of) the university, stating that it would be unfair to deny students the right to use technology.
What is happening in India is a hard-copy version of the digital struggle between publishers and educational institutions in other jurisdictions, such as the US and Canada, although without the apparent limitation of copying thresholds that apply elsewhere. Indian commentators have referenced the ongoing saga of Cambridge University Press vs Patton in the US where the question of digital course-packs has been under litigation (with Georgia State University being the defendant). What is the threshold for copying beyond which a fair use or fair dealing defence will not be sustainable? The issue is also currently the subject of a major court case in Canada, Access Copyright vs York University, where the question of fair dealing copying thresholds, unilaterally declared by various educational institutions, is among the issues under dispute. I have previously written on this case, pointing out the extent of the damage inflicted on educational publishing, and consequently on Canadian culture, by the decision of most educational institutions in Canada to cease to obtain licenses from Access Copyright.
India faces many challenges, among them the need to expand educational opportunities within the country. However at the same time, it needs to encourage the production and dissemination of knowledge domestically. If its education model is to rip off content from overseas publishers without regard for the consequences, not only will domestic editions and production of local books dry up, India will risk perpetuating a colonial status intellectually. That presumably is not what modern Indians want. Ubiquitous and unrestricted copying by academic institutions and their proxies is hardly the way to promote a domestic knowledge-based economy.
It will likely not be long before the digital version of the Delhi University decision will be before the courts in India. An unfortunate precedent has already been set. There must be a way to strike a better balance so that Indian students, and students everywhere, can have reasonable access to the materials they need for learning while providing a reasonable return to those who labour to produce those materials. If the publishers in India appeal the Endlaw decision, the outcome could be significant.
© Hugh Stephens, 2016. All Rights Reserved.
Update: The Delhi High Court has agreed to hear an appeal from the publishers against the decision to allow students at Delhi University to copy course packs. The hearing will be held on November 29.