Delhi HC's fresh air on photocopying law

Delhi HC's fresh air on photocopying law

The judgment tilts the economic competition towards larger social interests than individual rights.

The Delhi High Court in The Chancellor, Master & Scholars of the University of Oxford & Ors v Rameshwari Photocopy Services & Anr, known as the DU Photocopy case, recently held that photocopying excerpts from books and distributing them to students for academic purposes did not infringe the copyright of the publisher/author


In August 2012, three publishing houses – Oxford University Press, Cambridge University Press and Taylor & Francis initiated a lawsuit against one Rameshwari Photocopy shop and Delhi University (DU), the chief grievance being that photocopying the ‘course-packs’ bound volumes, which contained excerpts from various textbooks, infringed the copyright that the publishers held in those books (textbook piracy).

In October 2012, the Court had issued a temporary injunction restraining the photocopying shop from selling the (reportedly) infringing course- packs until the case was decided which led to an immediate ripple effect and a number of other photocopying shops in and around DU stopped supplying the course-packs.

The matter raised interesting legal issues including if there was a ‘right to copy’ portions of textbooks for academic purposes. On the one hand, there was the right of the publishing houses to earn adequate remuneration to remain economically viable, right of authors to gain economic regard from their creations, and the scope and interpretation of the academic exception in Section 52(1)(i) of the Copyright Act 1957.

On the other hand was the copyright doctrine of ‘fair use’, right of teachers to reproduce parts of textbooks for effective instructions to impart education, constitutional recognition of a right to education, duty of the state to avoid education becoming a commodity accessible only to the rich and whether publishers could treat the final product of extensive research out of public money as their sole property.

Authoring the 94-page judgment, Justice Rajiv Sahai Endlaw dismissed the suit and held that the educational exception under Section 52(1)(i) of the Copyright Act, 1957 covered the acts of photocopying and the course packs by DU for its students as there was no cause of action since there was no actionable infringement in the case.

It is trite law that there can be no copyright in any author, composer or producer save as provided under the Copyright Act. Section 2(m) of the Act defines ‘infringing copy’ as meaning in relation to literary works, a reproduction thereof, if made in contravention of the Act.

Sections 14(a)(i) and (ii), in respect to literary works, vest the exclusive right to reproduce the work in any material form and the right to issue copies of the work to the public not being copies already in circulation, in the owner of the copyright.

Further, Section 52 deals with acts which do not infringe a copyright. Clause (1)(f) commands that the reproduction of a literary work by a teacher, in the course of instruction, does not infringe a copyright. Clause (1)(i) further holds that the performance, in the course of the activities of an educational institution, of a literary work by the staff and students of the institution to a limited audience, is not a copyright infringement.

Principle of ‘exhaustion‘
The landmark judgment holds five major things – firstly, the words ‘to reproduce the work’ in Section 14(a)(i) include making photocopy of the work in contravention of the provisions of the Act.

Secondly, the right to make photocopies is the exclusive right of the author of the literary work and is a copyright within the meaning of Section 14. Thirdly, the principle of ‘exhaustion‘ has been bought in Indian intellectual property (IP) rights jurisprudence holding that neither Section 14(a)(ii) nor Section 51(a)(i) require issuance of copies to be for consideration/profit.

Thus, the books purchased by DU in which the plaintiffs claimed copyright were deemed to be a copy already in circulation and the exclusive right to issue the same to the public did not vest in the plaintiffs. Fourthly, the action of DU to supply the master copy to the shop, granting licence to it to install photocopiers in the premises and distributing the course packs to students for charge, did not constitute ‘publication‘ within the meaning of Section 52(1)(h).

Finally, the expression ‘instruction’ has been held to be different from a ‘lecture’ and ‘publication‘; Section 52(1)(h) has been held to be distinct from the word ‘reproduction‘ in Section 52(1)(i) thereby allowing copying for limited use. In Para 80, Justice Endlaw has written that copyright in literary works is not an inevitable, divine or natural right that confers on authors the absolute ownership of their creations.

The judgment is landmark in IP jurisprudence globally and tilts the economic competition towards larger social interests rather than individual rights. While noting various foreign precedents, Justice Endlaw has deliberated to carve out a fresh opinion to author a much needed progressive decision. I believe it will be challenged before the Supreme Court soon but I hope Supreme Court declines to issue notice against this fantastically written piece.

(The writer is an advocate, Supreme Court)

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