In its much awaited judgment in the Delhi University photocopying case (The Chancellor Masters and Scholars of the University of Oxford v. Rameshwari Photocopy Services), the Delhi High Court has dismissed the copyright infringement petition initiated in August 2012 by three publishers (Oxford, Cambridge and Taylor & Francis) against a photocopy shop located in the premises of Delhi University. This case, which was being closely tracked by students, teachers and the publishing industry alike, was seen as one with immense significance for questions of access to knowledge. While initially involving only the publishers, the photocopier and the university, the case also saw intervention petitions being filed by a student group (Association of Students for Equitable Access to Knowledge) as well as by teachers and academics (Society for Promoting Educational Access and Knowledge). While the publishers made the argument that the creation of course packs and the photocopying of academic material for the same amounted to an infringement of the exclusive copyright of the authors and publishers, the defendants argued that the reproduction of materials for educational purposes fell within the exceptions to copyright under Section 52(1)(i) of the Copyright Act.
Not a moral right
In his considered and sharply reasoned judgment, Justice Rajiv Sahai Endlaw examines the gamut of arguments made by both sides and arrives at the conclusion that copyright is a statutory right and not a natural right, and hence any right that is granted to owners is also limited by exceptions carved out by law. The nature of Section 52 of the Copyright Act is such that any act falling within its scope will not constitute infringement. Section 52(1)(i) allows for the reproduction of any work i) by a teacher or a pupil in the course of instruction; or ii) as part of the questions to be answered in an examination; or iii) in answers to such questions.
The crux of the dispute was about whether course packs fall within this exception. The petitioners tried to provide a narrow reading of the section, claiming that at best what the section allows for is the provision of materials in the course of a lecture and spatially restricted to a classroom. The court, while rejecting this claim, argues that “instruction” cannot be narrowly understood and, through a historically informed reading of the phrase “in the course of”, concludes that instruction includes the entire ambit of pedagogy from the creation of syllabus to teaching and provision of reading materials.
It then locates the question of education within a changing technological environment, and argues that “when an action, if onerously done, is not an offence, it cannot become an offence when, owing to advancement in technology doing thereof has been simplified” (paragraph 75). To make this point, Justice Endlaw contrasts his own experiences as a law student where photocopying was very limited and studying entailed students copying by hand, scribe like, pages after pages of books. Photocopiers have just made the task simpler and faster, but if the act of copying for a particular purpose is itself not illegal, and “the effect of the action is the same, the difference in the mode of action cannot make a difference so as to make one an offence”.
In a clear statement of the philosophical basis of copyright law, Justice Endlaw rejects the populist and unidimensional assumption that copyright is about the protection of the property rights of owners. He notes instead: “Copyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public.”
If copyright was always about maintaining a balance between competing ideas of private and public interest, the Delhi High Court has restored to copyright jurisprudence a clear mandate for the future, one which is cognisant that the end goal of technology is the improvement of our lives (material and intellectual) and “no law can be interpreted so as to result in any regression of the evolvement of the human being for the better” (paragraph 87).
The judgment has immense consequences beyond India and is a bold articulation of the principles of equitable access to knowledge — and one that deserves to be emulated globally. For a while now, the globalisation of copyright norms through international law (Berne Convention, TRIPS Agreement) has been accompanied by the globalisation of copyright standards that have primarily emerged from the global north. Aggressively pushed by the copyright lobby, such as Hollywood, the music industry and the publishing cartels, copyright law had effectively been hijacked by narrow commercial interests (albeit always speaking in the name of authors and creators). Thus even when it came to discussing fair use and exceptions and limitations, countries have found themselves constrained by judicial precedents from the U.S. and elsewhere that have defined quantitative restrictions on photocopying.
In a radical move, the Delhi High Court has concluded that if Indian law makers have allowed through statute for the reproduction of a copyrighted work in the course of instruction, it has done so on the basis of purpose (teaching) and with the conviction that this does not unreasonably prejudice the legitimate interest of the author. Further, this flexibility is provided to it through international law, and it is not the place of courts to impose artificial restrictions by way of quantitative limits. Justice Endlaw, while arriving at this conclusion, is acutely aware of the specific needs of countries like India where libraries and universities have to cope with the needs of thousands of students simultaneously, and it would be naïve to expect every student to buy copies of every book.
An interesting question to consider is whether the judgment effectively makes a clear distinction between fair dealing on the one hand (which is subject to doctrinal tests such as the Three-Step test), and in the copyright act in India governs personal use including research versus a clear statutory exception for educational use. This aspect of the judgment could almost be read as an instructional manual for countries who find themselves straitjackets under international copyright laws, and yet want to ensure the greatest flexibility in the way that they design a system that addresses their specific needs.
How will publishers respond?
While this judgment delivers a terrible blow to the publishers, the crucial question is, how will they respond? Through the entire case the publishers have alienated the student and academic community, and while it is within their right to appeal the judgment, it may be both politically prudent and ethically right not to do so. Teacher, readers, students and photocopiers are not the enemies of publishers; they are their greatest allies. In a time when books and reading itself are under threat from competing media forms, it may be useful to remember that it is education and greater access that makes readers, not copyright.