“Copyright, especially 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.”
In the case titled as The Chancellor Masters and Scholars of the University of Oxford v. Rameshwari Photocopy Services, the Delhi High Court dismissed the copyright infringement petition initiated by three publishers (Oxford, Cambridge and Taylor & Francis) against a photocopy shop located in the premises of Delhi University. The judgement was welcomed in India as the same was seen as one with immense significance for questions of access to knowledge. The above paragraph in itlalics makes the position of Indian jurisprudence clear. The publishers who were making 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, 1957. 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.
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.