Guest post by RAJSHREE CHANDRA: In the backdrop of the on going battle in the Delhi High Court, between publishers (OUP, CUP and Taylor and Francis) and Rameshwari photocopiers-Delhi University (next hearing 8th May, 2013), there are two perspectives to which attention needs to be drawn. The first, of course, is a legal one which allows for course pack to be compiled for dissemination of course and research material, provided they adhere to stipulated norms. What are these stipulated norms? Have DU, and its network of photocopying, infringed these legal guidelines or even transgressed internationally evolved, legally acceptable norms of “fair use”.

Fair use is an internationally derived copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for a variety of purposes that may be identified by individual copyright regimes based on the assessment of social requirement and its contribution to social good. These may be for purposes of commentary and criticism, for education, non-profit educational uses, research and scholarship,parody to name some common parameters of fair use. These factors are weighed in each case to determine whether the social gain that accrues from fair use, or copyright exceptions, are valuable enough to offset considerations of losses of the copyright owner’s potential income. Unfortunately, weighing the fair use factors is often quite subjective. For this reason, in order to bring some kind of an objective standard to bear upon the assessment of social cost versus economic cost, two considerations have assumed foremost importance in norm setting: the purpose and character of use and the amount and substantiality of the portion taken.

To determine the purpose and character of use the copyright law, like most other jurisprudential measures, relies on a certain prevailing “civic consensus” about certain uses’ capacities to enhance social good. So, for example, there is fair degree of prevailing consensus about education as a social good and the need to disseminate knowledge, improve educational access etc. This consensus however is not allowed to override all considerations of economic entitlements of authors, innovators, publishers. What it does is to temper economic considerations of entitlements and profit making with social considerations of access. The copyright law does so by stipulating the amount and the substantiality of the portion that can be under exceptions to copyright law.  These are standards that have universally become the provisos for copyright exceptions. In fact, some copyright scholarship show a semantic distaste for the term “exception”, indicating that issues relating to access to education for instance are not matters of exceptions to existing copyright law but matters of “rights” of users.

Contrary to what many people believe, there is no absolute word limit on fair use. For example, copying 200 words from a work of 300 words wouldn’t be fair use. However, copying 2000 words from a work of 500,000 words might be fair. It all depends on an assessment of circumstances and on the nature of use. Thus, the amount and the portion copied has to be within certain limits (either proposed explicitly by the law or based on certain implicit normative agreements) and has to be for certain purposes which promote public interest.

The US copyright laws are often regarded as being stringent and, in general, more favourable to property interests of the IP owners. The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites various examples of activities that courts have regarded as fair use: it includes “reproduction by a teacher or student of a small part of a work to illustrate a lesson.” In a recent case (Cambridge University Press v. Becker) against Georgia State University’s practice of readings being posted on course websites by instructors, the Court set the fair-use threshold at upto 10% of the total page count of a book. In most cases reproducing 10%, or less, constitutes fair use and does not need a separate licensing agreement for reprographic reproduction as the Publishers in the DU/Rmaeshwari photocopy case are demanding. These sub licensing agreements that are being advocated firstly is highly contentious, given that royalty rates are subject to IRRO’s discretion and could escalate in the coming years, as in Canada, where a rapid rise in royalty rates forced Canadian universities to terminate their licensing arrangements with a publishers’ association.

The Indian Copyright law, cognizant of conditions of limited financial means of masses and the need to build knowledge and social capital, is wider in its application of fair use. i) Section 52(1)(a) of the Indian copyright act exempts from infringement any “fair dealing” with a copyrighted work for the purpose of research.ii) Section 52 (1) (i) exempts from infringement any use of a copyrighted work for the purpose of educational instruction.

Thus, reproductions of copyrighted works for purposes of research, instructions to students, private study, non-profit distribution is within the permissible limits of Indian law. Two features of photocopying in this particular case need to be highlighted to stress the point that photocopying also conforms to the wider principle of fair use. First, that there is a proper license agreement between Rameswhari Photocopy Service and Delhi University where strict guidelines have been prescribed by Delhi School of Economics to ensure it is for bona fide uses and for students and faculty only; where the license, Rameshwari Photocopier is not permitted to undertake any “outside jobs”; where the license will provide a uniform rate of 40 paise/page. Secondly, the course packs mentioned in the DU photocopy case do not reproduce an entire book even in a single case.  In fact, a majority of the reproduction is well below the fair use threshold of 10%, the average percentage of books copied being 12.5%. 11 of the 19 books (listed by the publishers) copied are below the US threshold of copying!

The second perspective, which was alluded to in the beginning, is an invitation to view matters of copyrights more philosophically and ask the question: “ If It is his, what good does its being his do for everyone else?” Or perhaps, in a Michael Sandel-ian way, ask the question: “What is the right thing to do?” Law should always be open to moral disputes in order that it pushed to factor in (at the very least) minimalistic conceptions of just outcomes. Thus, rather than judge acts – for example, copyright infringement by Rameshwari – against ‘rules’ laid down in law, there is need to ask questions about ‘justice function’ of law and consider how it distributes the things we prize – education and its access being right up there in the lexical priority of things that a society values. Copyrights, like all property rights, cannot be unmitigated rights and have to demonstrate social utility and purpose. In other words, even as law becomes an instrument of private interests, it simultaneously has to demonstrate how the society, in general, benefits from these private interests being protected. This is a minimalistic conception of property and one that forms its legitimating premise. To eschew this is to allow (IP) law to abdicate all moral responsibility.

(Rajshree Chandra is currently a visiting fellow at the Centre for the Study of Developing Societies. Works in the area of intellectual property law and its intersections with aspects of human rights. )