The Division Bench of the Delhi High Court (‘DB’), on 9 December 2016, passed an Order setting aside the judgement of the Single Judge in ‘The Chancellor, Masters & Scholars of University of Oxford & Ors versus Rameshwari Photocopy Services & Ors’, restoring the Suit and identifying two triable issues in the Suit. The DB, however, declined to grant an interim injunction in favour of the publishers, essentially allowing the respondents to continue producing and distributing course packs containing copyrighted materials.
In 2012, five prominent publishers (which included Oxford University Press, Cambridge University Press and Taylor & Francis) filed a Suit against Rameshwari Photocopy Services and the University of Delhi for infringing copyright in their publications by photocopying certain extracts of their publications and compiling them into course packs for distribution to students for a fee. On 16 September 2016, a Single Judge of the Delhi High Court held that the Defendants were not infringing the Plaintiff’s copyright and dismissed the Suit on the basis that the Defendant’s actions fell within the exception carved out by section 52(1)(i) of the Copyright Act 1957 (‘section 52(1)(i)’). The publishers preferred an appeal against the judgment of the Single Judge.
Division Bench’s Decision
The decision of the DB also focuses on section 52 of the Copyright Act 1957 which provides that certain acts are not to be considered copyright infringement. In particular, the decision focuses on the interpretation of section52(1)(i) which permits ‘the reproduction of any work by a teacher or pupil in the course of instruction’.
When considering the issue of fair use, the DB held that unless a statute expressly excludes fair use, fair use must be read into every statute. Since with respect to section 52(1)(i), the legislature had not expressly made fair use a limiting factor, the general principle of fair use must be read into the clause. It went on to elaborate that the purpose of use would determine what is fair use. The utilisation of the copyrighted work would be fair use to the extent justified for the purpose of education. The extent of the material used whether, qualitative or quantitative would not impact whether the utilisation could be considered fair use. Further, the Court also rejected the application of American jurisprudence relating to ‘fair use’ to section 52(1)(i) for the reason that the test for ‘fair use’ had statutory roots in the United States of America and therefore was not applicable in the Indian context.
Effectively, the DB held that as long as the reproduction of copyrighted material was for the purpose of education, the reproduction was permissible as it amounted to fair use and it did not matter whether only a certain percentage of the copyrighted material was reproduced or the entire copyrighted material was reproduced.
In the course of instruction
Additionally, in order to determine if the preparation of course packs fell within the purview of section 52(1)(i) of the Act, the DB interpreted the terms ‘in the course of instruction’, ‘reproduction and ‘publication’.
The DB relied on the decision in Longman Group Ltd vs Carrington Technical Institute Board of Governors (1991) 2 NZLR 574, particularly on the statement that ‘the course of instruction would include anything in the process of instruction with the process commencing at a time earlier than the time of instruction, at least for a teacher, and ending at a time later, at least for a student. So long as the copying forms part of and arises out of the course of instruction it would normally be in the course of instruction.’, to interpret the words ‘in the course of instruction’. On this basis the DB held that the words ‘course of instruction’ have a wide meaning and that ‘course of instruction’ was not restricted to lectures by the teacher in the classroom but would include the preparation and distribution of material to be used in the ‘course of instruction’. The DB held that the end result would be the same irrespective of whether the phrase ‘in the course of instruction’ was treated as a verb or noun.
The meaning of ‘publication’ and ‘reproduction’
The DB contrasted their interpretations of ‘publication’ and ‘reproduction’ with those of the Single Judge. The DB held that a ‘publication’ would need to have an element of profit but need not be available to everyone. It would still be a ‘publication’ even if it is directed to a targeted audience. Further, the Court held that word ‘reproduction’ included the plural and hence making multiple copies was permissible as per section 52(1)(i). However, there would be no element of profit in the case of reproduction of a work for use in the course of instruction.
With respect to the Appellant’s arguments on the adverse impact on the market for copyrighted work, the DB held that students availing of the course packs were not potential customers as they would not be able to purchase thirty to forty books on each subject.
To deal with the argument that when reproduction takes place during the course of instruction, there cannot be an intermediary, the DB held that neither the teacher nor the student can be expected to purchase photocopiers and photocopy the work in the classroom during the course of instruction. The DB held that the argument relating to the use of an agency was irrelevant as the core activity remained the same.
The DB also dealt with the Appellant’s arguments that Respondent No. 1 was making a profit by preparing the course packs. The DB held that Respondent No. 1 was not making any profit from the course packs other than the usual profit made when photocopying documents.
The DB did not find any institutional sanction in the creation of the course packs as it held that the role of the Delhi University ended once it laid down the course curriculum. It was the teachers that determined and selected the reading material which included copyrighted material.
With respect to violation of international agreements to which India is a party such as the TRIPS Agreement and the Berne Convention, the DB held that the agreements allowed for signatory countries to enact laws for the use of copyrighted materials for the dissemination of knowledge.
The DB restored the Suit and held that there we two triable issues. The first being whether the inclusion of copyrighted work in the course pack was justified by the purpose of the course pack. The second issue was whether the photocopying on an entire book was a permissible activity. The DB did not grant an injunction in favour of the publishers but directed Rameshwari Photocopy Services to maintain a record of course packs photocopied and supplied by it. Rameshwari Photocopy Services could continue making course packs containing copyrighted material during the pendency of the Suit.
Several academics and students have welcomed the DB’s Order claiming that the decision will lead to better access to education in India. However, it can also be argued that the DB has failed to balance the interests of publishers with that of students and that licensing may have been a more appropriate way to deal with course packs. The question of whether the DB’s decision will lead to the opening of floodgates, whereby under the guise of education flagrant copyright infringement will take place, remains to be seen.