It isn’t every day that we see universities face off in court but that is exactly what happened, a couple of weeks ago, when Delhi University (DU) and a photocopying shop located on its premises were sued for copyright infringement by the Oxford University Press (OUP) and the Cambridge University Press (CUP), publishing houses owned by those universities. Apparently, Delhi University had been prescribing certain chapters from different books, some of which are published by OUP and CUP — and the photocopying shop in question used to photocopy these different chapters, compile them into a “course pack” and sell the same to students for a profit.
As of now, the Delhi High Court has only authorised an inspection of the photocopying shop by a court-appointed commissioner to ensure preservation of evidence for the ensuing trial and has not yet passed any injunction against either DU or the photocopying shop, which technically means that business can continue as usual until the court hears final arguments.
Predictably, the students at DU are outraged and have set up a Facebook group — Campaign to Save D-School Photocopy Shop — with a set of demands. A letter addressed to the Dean, on behalf of the “students and faculty” of the DU, does little justice to the tremendous intellectual faculties available at the Delhi University. Apart from calling OUP and CUP terms such as “criminal presses”, an earlier version of the letter, still accessible on another Facebook group (DUSU Election 2012), threatened in true fascist style, to ensure “that these books are banned from campus and organise a bonfire of books by these presses” if “push comes to shove”. That line was later replaced with an affirmation to follow “open source and free dissemination of knowledge”.
Incredibly, the letter never once mentions the words “copyright law” or, for that matter, even attempts to engage with that subject, or the economics of the publishing industry, or the fact that several eminent professors, past and present, at Delhi University, especially the Delhi School of Economics, are some of the most prominent Indian authors of OUP and CUP. Let’s just sample some of the top names — Amartya Sen, Andrei Beteille, Jagdish Bhagwati, Jean Dreze, all of whom have been or continue to be faculty at DU, have had multiple books published by OUP.
Keeping aside this rhetoric, there is a need to understand the legality of wholesale photocopying of works protected under India’s Copyright Act, 1957. Unlike real or tangible property such as land or a car, intellectual property like literary or musical works can be enjoyed by multiple persons at the same time — while only one person can enjoy a piece of land at any given point of time, the latter can be reproduced either through photocopying or through file-sharing on the internet, and more than one person can enjoy such a work without impeding other users. This critical difference between tangible property and intellectual property is the reason that copyright law in India, like in most countries, provides for certain limitations and exceptions to the strict enforcements of copyright. Typically referred to as either the ‘fair use’ or ‘fair dealing’ exception, Indian copyright law provides for a rather long list of limitations and exceptions which allow users of copyrighted material to use such works without prior permission of the authors or the copyright owners. One such exception in Section 52(1)(h), appears to give both teachers and students the right to reproduce any literary work “in the course of instruction”.
A liberal construction of this provision would legalise the action of photocopying complete books — but would at the same time completely destroy the larger objective of copyright law, which is to ensure incentives for authors and publishers to create and publish books. Any person justifying a liberal construction of these provisions needs to explain to the Delhi High Court as to how and why publishers in India will continue to invest in publishing educational books when their target market of university students can photocopy these books without buying them.
A more likely “purposive” interpretation of the provision would lead to the Delhi High Court placing some limitations on just how much of a particular book or article can be reproduced for educational purposes. American courts, for instance, have imposed certain limits on the portion of an educational book that can be reproduced for the sake of educational activity. Such an interpretation, which forbids wholesale photocopying, would better serve the interests of creativity and publishing.
Would such an interpretation of the law ensure cheaper or affordable books for students? Not necessarily. “Cheap” and “affordable” are relative terms. Universities like DU, heavily subsidised by the Central government, are renowned for their low fee structures. For example the annual tuition fees at the Delhi School of Economics, is a paltry Rs 216 per annum, with an annual library fee of Rs 6 and an annual library development fee of Rs 200. The monthly — not annual — tuition fee at Delhi Public School, Mathura Road, according to its website, is Rs 4,450; the annual fee for nine months is Rs 40,050. So how exactly should the publishing industry determine the price level for “affordable” or “cheaper” books at the university level? This is a question which is going to haunt publishers in India for the foreseeable future.
Clearly, publishers need to devise radical marketing strategies for the Indian market and engage with Indian universities in the conference room and not the courtroom. For their part, Indian students need to understand that academic books are the result of hard labour by both authors and publishing houses and that these books don’t fall into our laps from the heavens, or hell, depending on your perspective.
Destroying the incentive to publish by bringing in wide exceptions to copyright law is only going to ensure few incentives for the publishing industry to invest resources in the Indian market, and that could only be bad news for the already beleaguered world of Indian academia.
The writer, an intellectual property expert, is currently at Stanford Law School
