Opinion

Delhi High Court strikes a fine balance between the right to copy and copyright

The court has struck an enormous blow in favour of academic freedom and learning in India.

Three large multinational publishing empires taking on a small photocopying shop near the Delhi School of Economics in a court of law, seeking an injunction to stop it from photocopying their books, seems like the proverbial instance of the mythological brahmastra being used on a sparrow. This particular brahmastra though, far from annihilating its foe, turned on its user. In its landmark judgement on Friday, the Delhi High Court held that the making of photocopies of books for academic purposes did not constitute an infringement of copyright, and publishers could not legally stop universities and photocopying places from doing so.

Of course, it is a bit of an oversimplification to see it only on the above terms. The main defendant against whom the publishers had a grouse was not the photocopying shop but the University of Delhi which allowed the use of its library to make photocopies, and actively prescribed the use of photocopies of excerpts from the publishers’ books to its students. This, the publishers argued, was an infringement of their copyright protected under the Copyright Act, 1957 and should be put a stop to, or in the alternative, Delhi University should be compelled to obtain a licence from a copyright society which would pay royalties to these publishers.

As anyone who has studied in any institution of higher education in this country would know, academic titles are prohibitively expensive. This has partly to do with the oligopolistic nature of the business itself, dominated as it is by a handful of large multinational publishers and partly to do with the lack of sufficient monetary incentive to make all titles available for cheap in India. It is common practice, across universities in India, for faculty to prepare reading materials and course packs made up of extracts from academic works for classroom discussion purposes. This is essential to the teaching process as the prices of most of the titles are well outside the reach of almost all students and even otherwise, it would be difficult to expect students to purchase 10-15 books every semester just to read the relevant passages necessary for the course.

The judgment of the Delhi High Court, whichever way it went, had enormous implications therefore not just for Delhi University but also for universities across the country and access to information, something that the Delhi High Court is clearly aware of and highlights in its judgment. In the event, having held that the making of photocopies of copyrighted books, or allowing students to make and use photocopies of copyrighted titles for academic purposes would not constitute copyright infringement, the Delhi High Court has struck an enormous blow in favour of academic freedom and learning in India.

A question of interpretation

The key provision of the law relied on by the Delhi High Court is Section 52(1)(i) of the Copyright Act. Section 52 generally lists out those acts which won’t amount to an “infringement” of copyright. This section creates a legal fiction whereby acts which would otherwise have been prohibited under the copyright law are permitted for certain specific reasons. Making and distributing extracts of a copyrighted book, for example, would amount to an infringement but if the same is done within a judgment or for the purposes of argument in court, it wouldn’t amount to an infringement. Likewise, clause (i) of Section 52(1) states that a reproduction of a book made by “a teacher or pupil in the course of instruction”, would not amount to an infringement of the author’s copyright.

The publishers argued that this particular clause should be interpreted narrowly – that it protects only individuals, that is, a teacher who makes copies or a student who makes copies, but does not protect institutions such as Delhi University which prescribe the making of such copies as part of the course curriculum. The court rejected this argument taking into account the need to interpret statutes keeping reality in mind – that teaching no longer happens in the mythological guru-shishya parampara but rather in established institutions of higher education with large numbers of faculty and students.

Given India’s long history of formal institutions of higher learning dating back two millennia (think Nalanda and Takshashila universities), perhaps the guru-shishya parampara was actually the exception and institutional learning the norm as far as higher education was concerned. The Delhi High Court, conscious of the need to ensure that interpretation of statutes must serve a purpose in the here and now, and not in some mythological past, rightly holds that Section 52(1)(i) protects educational institutions as well, so long as such copies are made in the “course of instruction” – a phrase which the Delhi High Court also interprets widely to include educational activities outside the immediate classroom setting as well. In giving an interpretation to this clause, keeping latest technological developments in mind, the Court has made copying medium neutral – even taking and reproducing cell-phone pictures of passages from these books for academic purposes would be perfectly legitimate under the law.

Underlying the entire judgment is an appreciation that copyright is not an inherent or natural right of all individuals. The High Court clarifies that it is not an “inevitable, divine or natural right” of authors and something that can be traced only to a law made by a competent legislature. The scope of the right is given in the law, and the law itself, the court acknowledges, balances the copyright of the author who has created the work with the rights of the consumers of the work to access it. While intellectual property rights holders often pitch their claims on the basis that expanding and protecting these rights are necessary for “innovation”, the Delhi High Court casts a sceptical eye on such claims while pointing out that a copyright cannot be expanded to such an extent that it adversely affects the dissemination of knowledge essential for such innovation to occur in the first place.

The Delhi University photocopying case is one front in a larger ongoing war over intellectual property rights being fought across the globe. Whether it is in the field of medicine, genetic modification of crops, patenting of organisms, or cinema, multi-national corporations are aggressively looking for an expansion of Intellectual Property Rights laws to protect the monopolies granted by such laws in the name of “innovation”. Never mind that study after study is showing up the hollowness, if not the outright falsity of such claims of IPR promoting innovation. It is heartening that Indian courts, first in the Novartis case and now in the Photocopying case, are unwilling to be swayed by such tall claims and have been steadfast in fairly balancing the rights of consumers with those of creators.

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