5 October, 2016
Brief Facts:
A suit was instituted by five plaintiffs, namely (i) Oxford University Press, (ii) Cambridge University Press, U.K., (iii) Cambridge University Press India Pvt. Ltd., (iv) Taylor & Francis Group, U.K. and, (v) Taylor & Francis Books India Pvt. Ltd., in the year 2012, seeking the relief of permanent injunction to restrain the two defendants, namely (i) Rameshwari Photocopy Service and, (ii) University of Delhi from creating course packs for students by photocopying certain portions of the publications in which the plaintiffs hold copyright. The University of Delhi was directed vide order dated 26thSeptember, 2012 to consider obtaining license from Reprographic Rights Organization for preparing course packs.
On 17thOctober, 2012 the Rameshwari Photocopy Service was restrained from making and selling such course packs until the final disposal of this matter. Interim application for vacation of the said order was filed by the University of Delhi under Order XXXIX Rule 4 of CPC. The hearing on the mentioned application as well as the application filed by the plaintiffs under Order XXXIX Rule 1 & 2 of CPC concluded on 21st November, 2014 and the judgment was reserved.
Issues:
Whether the making of the impugned course packs by University of Delhi amounts to infringement of copyright held by the plaintiffs?
Whether the supplying of copyrighted books by the University of Delhi to Rameshwari Photocopy Service for
photocopying and subsequent creation of course packs by the latter amounts to infringement of copyright held by the plaintiffs?
Contentions of the Plaintiffs:
The objective of the plaintiffs was to restrain systematic photocopying of their publications in which no additional matter is being added by the University of Delhi.
The course packs are being sold for a price higher than the prevalent market rate corroborating profit motive. The defendants are also directly competing with the right holder plaintiffs.
The defence under Section 52(1)(i) of the Copyright Act, 1957 (“The Act”) is not applicable as the reproduction of work is not by a teacher or pupil and certainly not in the course of instruction. The phrase “in the course of instruction” does not include “in the course of preparation for instruction”.
The defendants may carry on with the making and selling of course packs after obtaining IRRO license.
Reliance was placed on the teaching exception given under Art. 10(2) of the Berne Convention and the three step test laid in Art. 9 of the Berne Convention and Art. 13 of the TRIPS agreement.
Contentions of the Defendants:
The course packs are a collection of materials from different text books. The ratio of material picked vis-à-vis entire book is infinitesimal and does not affect the potential market for the book.
In a developing country like India, not all can afford the cost of education. Students cannot be expected to buy various expensive books for a few relevant portions.
‘Instruction’ begins as soon as the academic session commences. Section 52(1)(i) of the act is not limited to classroom education. ‘Instruction’ must not be confused with ‘lecture’. Placing reliance on Longman Group Ltd. v Carrington Technical Institute Board of Governor (1991) 2 NZLR 574, it was argued that “course of instruction” would include anything in the process of instruction which arises out of the course of instruction, also encompassing preparation of material to be used in the course of instruction.
Once reproduction is expressly permitted under Section 52, no limitation should be placed on it.
If the act of the defendants does not constitute infringement, the question of obtaining IRRO license does not arise.
Judgment:
Copyright is a statutory right and not a natural or common law right.
Applying the principle of ‘Lex specialis derogat legi generali’, the scope of clauses (h), (i) and (j) of Section 52 of the act cannot be restricted by the parameters of general clause (a).
Section 52(1)(h) does not apply to the present case as the copied publications are copyrighted matters in entirety and also, the act of copying the same to make course packs does not amount to publication.
Laws must be interpreted in the context of prevailing societal situations. The ‘Guru-Shishya parampara’ has for long been institutionalized, consequently, the reference to ‘teacher’ in Section 52(1)(i) must be deemed to include the University.
The words “in the course of instruction” embrace the process of imparting instruction during the entire academic session and are not circumscribed to personal interface between teacher and pupils.
If the act of University of Delhi does not amount to infringement, it will not become infringement merely because the photocopying is being done with the assistance of an independent contractor.
The teaching exception under Art. 10(2) of the Berne Convention and the three step test laid in Art. 9 of the Berne
Convention and Art. 13 of the TRIPS agreement leave it on the discretion of the privy countries to permit reproduction of any work in certain special cases. The only obligation is not to permit reproduction of work which conflicts with the normal exploitation of the work so as to unreasonably prejudice the legitimate interest of the author and that the utilization of work must be to the extent justified by the purpose and compatible with fair practice. The Indian legislature has found reproduction of copyrighted matter in the course of instruction to be justified for the purpose and to be not unreasonably prejudicing the legitimate interest of the author.
Analysis:
The present judgment carves out a historic balance in the constant tractor pull between the private rights of the copyright owners and the need for dissemination of knowledge. Copyright, aptly recognized in this judgment as merely a statutory right, traces its origin to The Statute of Anne which was titled ‘An Act for encouragement of Learning’. The title itself emphasized that the basis of copyright protection is public interest. Also, Article 7 of the TRIPS Agreement, which vividly lays down its objectives, clarifies that the protection and enforcement of intellectual property rights must be in a manner conducive to social and economic welfare. There is a very significant public interest and social welfare at the intersection between the copyright policy and access to educational materials. This is even more significant in developing countries like India where developmental goals are intricately connected with educational goals. Ergo, education must be accessible, affordable and available to every individual. In view of the author, this public interest justifies the limited overriding of private rights of authors for addressing the needs of education.
For further information, please contact:
Aprajita Nigam, LexOrbis
mail@lexorbis.com
