I felt compelled to reply to Shamnad’s last post on the OUP-DU photocopying controversy for several reasons. The most important objection being that neither I nor Mr. Saika advocated, in my last post, that the Delhi High Court should decide the case just because the IRRO was ready to offer an affordable licence. To repeat Mr Saika’s quote in my last post, he merely states “We have already said in court that as soon as proper licenses are taken from the IRRO by the University or Photocopier we will withdraw the complaint.” I repeat, nobody has made the following argument (to extract from Shamnad’s post) “My Lords: don't bother with the legality here. Let me propose a rather simple solution and save you the trouble. All Ravi has to do is to pay me Rs 100 a month. As your Lordships will appreciate, this amounts to nothing more than the price of a cup of tea (or two)!”
In fact, in my last post, I very clearly state the following:
“On a purely jurisprudential level, I can foresee some arguments against these licences. For example, regarding the blanket licence for the college which imposes a limitation of not more than 1 chapter or 10% of any book – it could be argued that a Court of law might well interpret Section 52(1)(h) of the Copyright Act to allow for a fair-dealing exception of atleast 10% or who knows, maybe even more. Similarly for course-packs, there are going to be arguments stating that if each ‘pack’ in the course-pack falls within the presumed 10% fair dealing exception, then the student does not have to pay anything.”
So why do I endorse the IRRO licences? Because honestly, I think DU is going to lose this case, hands down. There are two primary defences that DU has on the basis of Section 52(1)(h) of the Copyright Act and let me explain as to why both defences are likely to fail:
(a) One possible liberal interpretation of the provision is to allow for photocopying of entire books on the grounds that the provision does not lay down any percentages unlike Section 52(1)(g). I don’t think a Court is going to buy that argument because it in essence destroys the very essence of copyright law. Why are foreign publishers like OUP and CUP going to invest resources in developing Indian academia if their target audience is allowed by the law to photocopy books without buying them?
(b) The second defence which is premised on a purposive interpretation allows for only limited photocopying. The global standard seems to be at 10% and although Amlan’s calculations, in his last post, seem to show that most of the books copied are less than 10% there is a contrary view which suggests that he was wrong in his calculations. In a reply comment to his post, a link was given to a document which claims that average percentage of photocopying is at around 16.85% with the highest percentage being at 33%! Going by the global standard, DU is likely to lose this case unless for some reason the Delhi High Court decides that 20% is the new norm. Let me add a disclaimer and state that I have not personally verified any figures over here and I hope that Amlan can either confirm or deny the same.
Faced with a situation where a hypothetical client (DU) is going to lose a case, I would advise them to settle. Moreover, a lot of newspaper reports and the comments on the Facebook group seem to indicate that the main grouse of the DU students was that they should not be able to buy entire books just for the use of one chapter. Well I agree with them and if the IRRO is offering them a workable alternative why not accept it? I think 0.50 paise per page for a course pack is very reasonable and to allow the photocopy shop earn more than the IP owner is a perverse incentive. If the students of DU cannot afford to pay for such course packs, the University should buy a licence on their behalf and subsidize them. After all DU receives huge subsidies from the Government of India and I doubt whether this licence is even going to make a prick in its finances.
As for the arguments that the IRRO may hike its rates or abuse its position or the possibility of denial of licences, I think that line of argumentation is rather cynical. Why start off by presuming the worst? There are checks and balances in the system and if the IRRO abuses its position it will have to face the wrath of a lot of people. So should DU go ahead and fight this battle just for the sake of testing the boundaries of ‘fair-use’ provisions in the Copyright Act, 1957? Well, it is certainly free to do so but it must keep in mind that it will be liable for damages for lost profits. It is a government university and if it is found to be misappropriating the intellectual property of private tax-paying companies and citizen-authors, it should certainly be made liable for damages.