he Delhi high court on Friday restored the copyright suit brought by international publishers against a photocopy shop on Delhi University’s (DU) campus in order to determine whether or not copyrighted material was being used in the course of instruction.
For this purpose, the photocopy shop has been directed to maintain records of course packs photocopied and supplied by it and submit six monthly statements to the court.
A division bench headed by justice Pradeep Nandrajog, however, did not restrain the shop from selling the photocopied course packs to students during the time that it takes to settle all issues through the trial process.
“What needs to be determined is whether the copyrighted material is being used for the intended purpose, that is, for instructional use by the teacher to the class,” said Justice Nandrajog, while pronouncing the order.
The 58-page judgment, which set aside a single-judge order issued in September, noted that expert evidence would be required to analyse if inclusion of the copyrighted material in course packs could be justified by being put to use for the purpose of teaching. For this, its use would have to be in line with the objective of the course, the course content and the list of suggested reading given by teachers to students.
The trial process will also look into the issue of photocopying entire books.
Publishers who had challenged the single-judge order of 16 September had argued that reproduction of copyrighted work for distribution to the public was not legally permissible and would amount to infringement under the law. It was further contended that interpretation of copyright law had to be done in the context intended under the Copyright Act, 1957.
The order allowing for such photocopying was also opposed on the grounds that it would diminish the publishers’ market and wipe out the basis of copyright as a whole.
Friday’s ruling caters to students’ interest but has left publishers’ interest unaddressed for the time being, said Sumeet Malik, director of Eastern Book Co. Pvt. Ltd.
“The copyright law already has a balance between what is protected and what can be legitimately used without permission. In today’s verdict, the court while interpreting the ‘fair use’ provisions, has rejected the qualitative and quantitative test and brought in the ‘fairness in the use can be determined on the touchstone of extent justified by the purpose’ test,” he said.
“If this is to be accepted, there may remain no use for anybody to buy the book itself. I am not sure how many authors/publishers will want to continue creating authentic and reliable educational content if they are not adequately remunerated. However, this is not the final position as the court has directed for restoring the trial which might improve things for publishers,” Malik added.
Under the earlier order passed by Justice Rajiv Sahai Endlaw, a plea by a group of international publishers seeking to restrain Rameshwari Photocopy Service from selling photocopies of textbooks and course material was dismissed, paving the way for students to buy photocopied course material for university exams.
The landmark verdict, which set a precedent for the applicability of copyright law in educational cases in India, held that “copyright in a literary work is not an inevitable, divine or natural right” conferred on an author. It added that the copyright law is intended to increase and not impede knowledge.
The 94-page ruling had observed that photocopying and creation of course packs to be used in the course of education by students was covered under provisions of the Copyright Act.
Holding students’ interests paramount, the ruling concentrated on the aspect of affordability of low-cost textbooks through photocopying.
It also recognised the importance of technological advancement, while holding that through photocopying, students could obtain voluminous course material at a low cost and would not be required to copy each page.
“I am not satisfied with today’s verdict as it reinforces negative stereotypes about the applicability of copyright law in education cases in India. It may be seen that the publishers’ have not been able to convince the division bench to make out a case of infringement against the photocopy shop and university. This is also bound to open floodgates for potential litigation by publishers.” said J. Sai Deepak, an arguing lawyer in the Delhi high court.
The legal battle began in August 2012, when publishers, including Oxford University Press, Cambridge University Press and Taylor and Francis Group, brought a case of copyright infringement against Rameshwari Photocopy Service, a licensed vendor on DU’s north campus.
The publishing houses claimed the sale of compilations of parts of books in the form of course packs to students is illegal and in violation of the provisions of the Indian Copyright Act.
The court had passed an interim stay order restraining the shop from selling copies of compiled course books to students in October 2012.
Although the case was specifically against Rameshwari Photocopy Service, other photocopy shops in the vicinity also stopped the sale of such course packs due to fear of being dragged to court.
In a joint statement, Oxford University Press (OUP), Cambridge University Press (CUP) and Taylor & Francis (T&F) said, “As Publishers, we are fully committed to the ongoing creation of high quality knowledge and learning materials across all disciplines and subjects...Through this appeal, we had sought to clarify that Indian copyright law did indeed support such a framework, and in so doing balance the interests of those creating learning materials here in India, with those requiring access to them in a fair and sustainable manner.
We will consider this judgement in more detail over the coming days. In the meantime, we wish to reiterate that all publishers continue to work on models that will enable equitable access to knowledge.”
Prashant Nanda contributed to the story.