A division bench of Justices Pradeep Nandrajog and Yogesh Khanna said it was "not inclined" to grant interim injunction to the foreign publishers but was setting aside part of the September 16 judgement of a single judge, who had allowed sale of photocopies of textbooks by saying there was "no triable issue" arising out of the dispute.
It said it has to be determined whether photocopying of entire books would be a permissible activity and whether the inclusion of copyrighted work in course pack for students was justified.
"Having restored the suit and identifying the triable issue warranting evidence, we are not inclined to grant interim injunction to the appellants (publishers) but would direct respondent number one (photocopy shop) to maintain a record of course packs photocopied by it and supplied to the students," the bench said in its 58-page verdict.
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"The suit is restored for trial on the issue of fact and for which parties would be permitted to lead expert witness testimony," the court said and posted the matter for further proceedings before the single judge on January 4 next year.
Rameshwari photocopy service runs a shop in the precincts of Delhi School of Economics in the university campus.
In its verdict, the bench said the legal issue which
arises for consideration would be interpretation of section 52(1)(i) of the Copyright Act, 1957 as the photocopy shop and other defendants have admitted photocopying pages from the publications in different proportions.
"The issue would be: Whether the right of reproduction of any work by a teacher or a pupil in the course of instruction is absolute and not hedged with the condition of it being a fair use. This would subsume a sub-question: What is the span of the phrase 'by a teacher or a pupil in the course of instruction' in section 52(1)(i)(i)," it noted.
"It is true that there has to be fairness in every action, and irrespective of a statute expressly incorporating fair use, unless the legislative intent expressly excludes fair use, and especially when a person's result of labour is being utilised by somebody else, fair use must be read into the statute," it noted.
"Whilst it is true that winds from across the border should be welcome in a country, but care has to be taken to retain the fragrance thereof and filter out the remainder," it said.
(REOPENS LGD27)
The publishers had sought reversal of the single judge order, contending that sale of photocopies of books published by them affect their market share.
Their submissions was opposed by senior advocate Aman Sinha, appearing for DU, on the ground that "object of Copyright Act is to increase knowledge and not to impede it".
Countering the submissions, senior advocate Pratibha M Singh and advocate Saikrishna Rajgopal, who appeared for the petitioners, had said their clients also provide customised content and sale of photocopies of books published by them affect their market share.
"The university, colleges and photocopiers should take a licence before xeroxing material published by petitioners," Singh had said, adding that the petitioners are not just publishing textbooks but are providing content online and provisions of the Act have to be interpreted as per "digital exploitation" of the material.
The publishers have approached the division bench against the September 16 order claiming Rameshwari Photocopy Service in DU was infringing upon their copyright over the text books.
The order, which brought cheers to many students by rejecting the publishers' 2012 plea against the sale of photocopies of their textbooks, said copyright in literary works does not confer "absolute ownership" to the authors.