The on-going litigation between a group of leading publishers and a small photocopying shop attached to Delhi University has all the elements of a legendary 'fair dealing' debate.
On one side we have Big Publishing (Oxford & Cambridge University Press along with Francis & Taylor) who argue that use of their intellectual and creative product require recompense; on the other, we have students (many of them from impoverished sections of society) who argue that gaining a functional education in India is impossible without cheap access to such prohibitively priced material (a Facebook protest event has been organised). This sets the stage for one of the most important copyright battles in India in the last few years.
To quickly recapitulate the issue: A small photocopying shop attached to Delhi University regularly compiles extracts from copyrighted books and makes it available to students. A group of publishers have sued Delhi University & Rameshwari Photocopy Service for copyright infringement of their works.
SpicyIP has obtained a copy of the plaint, which can be accessed here.
Professor Basheer wrote an article yesterday exemplifying the need for a fairer view of 'fair dealing', keeping in mind the 'public interest' at issue here. But I argue that even looking at the black letter law together with recent precedent, the Delhi High Court should rule that compiling photocopied materials from these books, within a reasonable threshold, is permissible within the four corners of copyright law in India.
THE TWO LEGAL QUESTIONS
I will employ the two-fold test generally employed in such analysis:
- Is the copying done for a permissible purpose?
- Is the dealing 'fair'?
I. LEGALITY OF COPYING EXTRACTS FROM BOOKS
I will begin by examining the question of whether compiling and circulating extracts from books is legal in the first place. I think it is essential to begin my analysis from this point because a lot of pro-publisher commentary I've noticed rests on the rhetoric that - 'publishers are not charity houses' and questioning 'why publishers should be giving out their works for free'. The fact of the matter is, legally speaking, copyright law in India and all across the world acknowledge that sometimes using/reproducing/distributing parts of a copyrightable work, without making payments to the copyright holder, is necessary and permissible. This is the essence of 'fair dealing'.
This is enshrined in S.52 of the Indian Copyright Act which provides for a wide educational fair use exception (See Lawrence Liang's excellent piece on exceptions and limitations for education in copyright law).
Specifically on the issue of whether distributing extracts to students involvess a permissible purpose, we may refer to the recent decision of the Canadian Supreme Court in the case of Alberta (Education) v. Canadian Copyright Licensing Agency (2012). In this case, the court ruled that copying material for teaching in classrooms would pass the permissible purpose test. One could arguably restrict the scope of this decision to 'teaching in the classroom' alone. But given that the underlying rationale in this judgement to encourage private or group studying using these materials and the fact that the Candian fair dealing provision mirrors the Indian one, I am confident that Indian courts will interpret this more liberally. I have analysed this decision in a previous post on SpicyIP.
(a) Purpose of the end-user
I expect to find little objection on this issue of 'permissible purpose', and this is hardly surprising given that the important 'purpose' to be identified here is that of the end-user. In this case, the end-user is the Delhi University student and the purpose is purely educational (unless these very same students are also running coaching centres and using this material for a commercial purpose - which I highly doubt. And in that case, such use is undoubtedly illegal).
(b) Purpose of the copier
Although this aspect enters only in the second-stage determination of: 'is the dealing fair', I think this is where the relationship between the University and the photocopy shop will become significant. One could assert that the shop is being run with a commercial objective. But I am given to believe that the shop is acting as an agent of the University (after a thorough tendering process) and therefore, the purpose of the copier (Rameshwari Photocopy Services) is essentially the purpose of the University. And it goes without saying (whether we rely on the University motto or something else) that the objective of the University is to promote the goals of education, which is squarely covered under the copyright law exceptions.
While I have focused on a very recent decision to argue my point, Danish Sheikh over at Kafila has made a thorough comparative analysis on this point.
II. THE QUESTION OF 'HOW MUCH IS TOO MUCH' & THE THRESHOLD FOR DETERMINING LEGALITY
I do not for a second question the ability of the publishers to assert their copyright in such a case, simply because it involves the unassailable spectre of 'Indian education'. However, courts have dealt with this issue in other jurisdictions in the past, and perhaps it would be wiser to defer to them on the question of the 'extent of permissible copying'.
In the May 2012 decision of Cambridge University Press v. Becker, it was decided that the University would not require a license for reproduction of less than 10% of the total page count of the book. Professor Basheer in his Indian Express editorial argued that if an IP-maximalist regime such as the U.S. can establish the threshold at 10% of the total page count, India should take the lead and peg the threshold at 20%. And I fully agree with him.
Therefore, the courts in India would be reasonably expected to peg the fair dealing threshold at 10-15% of the total page count of the book.
The second leg of my analysis involves a determination of whether this threshold has been breached in this case. For some context, it might be useful to refer to a piece by Rahul Matthan in the Indian Express where he argues that the defendants
publishers are in violation of India copyright law.
I will work with the threshold set by the most recent case on this issue - i.e. 10% of the total page count of the book, although I expect this to be increased in the Indian context. I have listed out the total number of pages and the total pages copied in the course packs. I have then calculated the percentage of the total page count that has been copied. You will notice that the average percentage of the entire book copied is only 8.81 %.
AVERAGE PERCENTAGE OF ENTIRE BOOK COPIED = 8.81 %
The full document can be viewed here. I will be updating this file from time to time with more empirical data. (Note: If there are any errors in my calculation, please do let me know. Calculations are based on figures made available after reviewing the course packs. Any errors are purely accidental and I will be happy to revise the figures if pointed out to me)
This is far below the fair dealing threshold set out in Becker. Even looking at each of the instances individually, it is found that a majority of the cases involve reproduction of less than 5% of the total page count of the book.
Out of the 23 books in question, only 5 extracts exceed the 10% threshold (these have been marked in red in the document). Given that this threshold is likely to be raised to 15-20%, you will find that there is only one instance that breaches this threshold. To suggest that the photocopy shop and Delhi University should have to shell out Rs. 60,00,000 in damages for something like this, is frankly a little disturbing to me. When did we become so fixated on the economic exploits of copyright that we forget the very purpose of the regime - to promote creativity and advance the progress of arts and science?
Thus, in my estimation, both tests: the permissible purpose and fairness test have been passed in this case. We are working on producing more empirical evidence to establish fairness and I will be analysing some more legal arguments in my next few posts. I hope for now, this clarifies my stance on the issue of 'where to draw the line' and hope we do not appear biased or to be pandering to anyone. I am not advocating the abolition of copyright or stating that merely because students cannot afford these books, they should be allowed to infringe copyright. I simply think that the threshold for infringement has not been breached in this case and therefore public interest considerations aside, even strictly looking at the law, Delhi University and the photocopy shop should be in the clear.
(Disclaimer: These views are strictly my own and do not reflect the opinions of other bloggers on SpicyIP)