Delhi University Restrained for Alleged Admission of Infringement: True Lies? Amlan Mohanty

Cross posting an intervention  by Amlan Mohanty from SpicyIP since it provides us with a very insightful analysis of the recent injunction obtained in the DU photocopy case. It also refers to  an anonymous link to communication which indicates what the real intent behind the case is.

Delhi University Restrained for Alleged Admission of Infringement: True Lies?

This afternoon, in response to my post announcing a petition relating to the OUP-Delhi University copyright dispute, we received a comment informing us that an order had already been passed against Delhi University a few days ago.
There was also a link to an e-mail allegedly sent to various publishers informing them of this order. The e-mail appears to have been sent from the lawyers representing the publishers. Unfortunately, this was posted anonymously in our comments section so we are unable to verify its authenticity. However, if it is in fact genuine, it raises an entire gamut of interesting questions that the future of this case will hinge upon.
I have checked the Delhi HC website but the order is still not available. So I will rely on the contents of the e-mail (as it appears to be coming from someone who was present at the hearing) to understand the possible basis for the order. In one section, the e-mail states as follows:
“During the course of the hearing today, the Court’s attention was drawn to Delhi University’s undertaking in its Written Statement filed in Court that it would not in the future indulge in the acts complained of by the publishers. We submitted to the Court that the statement made by Delhi University should be recorded and converted into a formal order of injunction so that the University is bound by an order of injunction passed by the court, for the future.  The Court agreed with us and accordingly, passed a formal order of injunction directing that the Delhi University would remain bound by its statement
It struck me as extremely odd that Delhi University would make such a statement when it is undoubtedly allowed to make course packs under current provisions of law, as I have explained here.  I managed to obtain a copy of the D.U. written statement, and having read it in its entirety, am convinced that this is not an admission of illegality or guilt. Throughout the 29 page written statement, counsels for D.U. have raised a vigorous defence on several grounds including S.52(1)(a) [for private use and research] and S.52(1)(h)(I) [allowing reproduction by a teacher/pupil in the course of instruction] besides making several other very compelling arguments. Delhi University’s written statement is available here.
Thus, it appears that the court has entirely relied on this single inadvertent statement in the written statement to arrive at its decision, without taking into account any of the fair dealing defences available to the defendants. More importantly, this injunction would effectively bind D.U. to a statement it has not made with the same intent being attributed to it. In my opinion, this is certainly a decision that can be challenged.
How could Delhi University be arguing that such acts are permissibly in view of the fair use exceptions in S.52 of the Act and at the same time agree to refrain from doing so in the future? The alleged e-mail sent out by the publishers’ lawyer seems to indicate that the fair dealing defences did not cover the making of course packs and that the court accepted this contention:
“During the course of arguments advanced on behalf of the photocopying outlet, various ‘fair dealing’ defences available for educational purposes were highlighted by its Counsel. The Court agreed with our submission that the making of course packs by the photocopying outlet could not be covered under the defences of making copies/reproductions in the course of instructions or a fair dealing for purposes of private use/research.  The Court therefore passed a formal order of injunction restraining Rameshwari Photostat as well” 
From my conversations with DU students and others that attended court hearings, the court did not at all explore the scope of defences. This order, if at all passed, appears primarily based only on that inadvertent 2 lines which were  trumped up as admissions made by DU. Even otherwise, having spent hours and hours meticulously calculating the quantum of reproduction in these course packs and making sure that the majority were under 10% (thereby increasing the likelihood that they would be covered under copyright defences of fair dealing etc), , I am perplexed (to say the least) and enraged (at best) that a judge could have come to such a finding (assuming he did actually consider the defences, which I personally very much doubt).
What of the recent Canadian decision where course packs were explicitly held to be legal for educational purposes?What also of the recent decision in the United States where the court found that besides the right to make complete copies of books that were out of print, university libraries could, in addition, also make use of the fair use defences available under the Act?
How is it that the Canadian and American courts (not to mention a bunch of other countries with infant IP regimes) have held fair use defences to be applicable to the making of course packs, but somehow the Indian courts have found otherwise?  If there is a country that requires wider exceptions to copyright, it is India – with its unique socio-economic conditions and population density, not to mention the prohibitive cost of books (see Lawrence Liang’s detailed empirical study). Crores of rupees can, and have been spent on educational programs across India, with mild to positive success. But it is a real shame that when an opportunity actually presents itself to protect the future of Indian education, so little is done about it.
The e-mail also suggests that this decision will not be appealable because it is a ‘consent order’. But I am hard-pressed to believe that this is in fact the position of D.U. when there is an active Facebook page campaigning against the publishers’ suit and letters from eminent DSE alumni such as Amartya Sen, expressing their anguish at the policy decision of the publishers to file such a reprehensible suit. If D.U. does in fact wish to defend this case, then there is no question of a consent decree and an appeal is more than definitely forthcoming.  There is recent legal precedent (2005) available to this effect as well.
So to conclude, I would only say this – if in fact the injunction was passed because D.U. no longer wants to pursue the case, that is another matter. However to my mind, nothing in DU’s written statement amounts to a specific admission of guilt/illegality or indicates it has agreed to settle this case. Anything to the contrary was merely inadvertent in the interest of caution or was simply a result of bad drafting.
If in fact counsels for D.U. argued the fair dealing defences in court, then it should have been considered by the judge before passing the injunction. I would very much like to see how the judge’s reasoning for why the current exceptions ‘do not cover course packs’, when judges from pretty much every other part of the world, think otherwise. We will have to wait for the order to see the actual reasoning employed, if at all. But as I said earlier, I very much doubt if this aspect was considered at all.
However, if the defences weren’t considered at all, that is definitely grounds for a review and hopefully we will have a strong legal precedent once and for all holding photocopying course packs to be legal in India.
If the defences were in fact taken into account and an injunction was passed after examining the provisions of the Indian Copyright Act, then we can all walk away from this episode with heavy hearts, knowing that the fair dealing exceptions in the Copyright Act inserted to further education and enable access to knowledge, have failed to fulfill the very objectives they were meant to achieve.
Finally, as a student myself, I have one closing thought – we enthusiastically celebrate the successes of Indian students as they far outperform their peers in Ivy League colleges and the Oxfords and Cambridges of the world. But do we ever stop to think how they managed to achieve this in the first place? It is easy to discount and hard to quantify the influence of course packs or any reading material for that matter, on the successes of these students. But take it away and we will slowly but surely begin to appreciate its immeasurable importance. For as the saying goes – you don’t know what you’ve got till it’s gone.  To me, this order, which seems to be based on no legal reasoning at all, will have to be challenged.

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