Monday 9 January 2017

Publishers vs. A Photocopy shop - Where is the line of infringement?

In 2012, a few leading academic publishers of the world which include The Oxford University Press, The Cambridge University Press and Taylor & Francis Group (The Plaintiffs), instituted a case against a Photocopying shop at Delhi University premises before the Delhi high court. The photocopying shop, Rameshwari Photocopy services had been authorised by the University to photocopy certain books of the plaintiffs and provide course packs to the students at a cost. The plaintiffs alleged that this act constituted infringement, an act the Delhi University sanctioned by providing reading list as well as allowing the photocopier to use the books from their library.

The copyright law has provisions which allow fair dealing of copyrightable material. These include provisions allowing a teacher or a pupil to use in the course of instruction, for review or reporting, or limited publication, among various others.

The plaintiffs relied on established cases in the west as well as the TRIPS and Berne Convention to plead that the rights of authors of copyrightable material should not be prejudiced by municipal laws and contended that the University should have applied for a license from the Indian Reprographic Rights Organization (IRRO) as the act of photocopying is competing with their business and infringing their copyrights. The University as well as Rameshwari photocopy  admitted to copying portions of the books but also contended that the reproduction of these books were meant for specific students only and was covered in fair dealing as the students would not be able to afford the books individually.

The Division Bench of the Delhi high court decided this matter in appeal in favor of the defendants and held that copyrights are not natural rights, but are in fact given to the authors by legislation. The rights under the copyright law in India are given equally to the authors as well as the public. The court held that the term ‘in the course of instruction’ should be seen in its widest connotation and course packs designed by the teachers and provided by the photocopier should be included in the fair dealing scope.

While the publishers insisted that they are losing business because of the course packs, the university and the students pleaded that they should be allowed to photocopy the material to an unlimited extent, because the publishers didn’t lose their business and in fact the course packs encouraged the students to buy the books. None of the parties seem to have shared any data supporting their stand.

The court could not have fixed a percentage of material from the books which should be allowed to be copied without inviting any copyright infringement concerns as that would amount to legislating. So, it interpreted the provisions of the Indian Copyright Act, 1957 in the broadest way keeping in view the principle of the act which is

Copyright, specially in literary works , is 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.

Commentators have hailed the decision of the court as allowing ‘poor students’ access to information, one thing that skips consideration is that the copyright act of India does not define fair dealing properly. If interpreted strictly, fair dealing should be an exception and number of copies and extent of copies of the material in the book should be pre-defined to ensure that the commercial interests of the authors and publishers are not unduly infringed. One possible misuse of the interpretation of law in the present case could be visualized like this:

If course packs are actually legal, this practice would encourage Universities to buy lesser number of copies of the books than actually required. It will also be very difficult to determine whether the course packs are being used only by students. If the market for these books is academia of the country and they have been given a free hand to infringe any amount of the text from a book as long as it is not a cover to cover copy, such wide interpretation has the potential to kill the copyrights of all authors and publishers.

Absence of quantifiable data makes it impossible to predict which of the two outcomes would be correct – that whether the publishers actually suffer losses or not. Another important feature is absence of clarity in the written law. If the judges are made to guess the intent of the law keeping into the view the international conventions and norms, it leads to subjective reading of the same law. For example, the interpretation of the same high court of the term ‘fair use’ in the case of India TV Independent News Service Pvt.Ltd. & Ors. vs. Yashraj Films Pvt.Ltd (India TV case) was rejected by the present division bench in this judgment.  In the India TV case, the established principles of determination of ‘fair use’ in American jurisprudence were accepted and applied to determine whether copyright infringement of a song occurred. These principles are:

(i)                  the purpose and the character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
(ii)                the nature of the copyrighted work;
(iii)               the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(iv)              the effect of the use upon the potential market for or value of the copyrighted work.

In the present case however, the judge’s noted that ‘general principle’ of fair use would be read into the clause and considered only the purpose of the act alleged to be infringement in making a decision.
Leaving interpretation of vague laws to the judges increases confusion in the public and could take years for an issue to be finally decided by the Supreme Court. The parliament needs to update the outdated laws on which the courts are facing dilemmas through a detailed analysis of the situation as well as deliberation. A clear law could avoid cases similar to the present one entering the judiciary and make administration of justice more accessible to citizens of the country.

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