 "Legalising the right to photocopy")
The judgment widens definition of teacher: Anuradha Salhotra
As a young student of intellectual property law, one of the first lessons I learnt was that of all the intellectual property rights, copyright was the easiest right to acquire and the hardest right to enforce. The law had a statutorily defined compass but with so many exceptions that if one really looked, one could always find an exception in which to fit in!
While the dismissal of a copyright suit filed by well-known publishers, of text books against a photocopying shop licensed by Delhi University and the Delhi University for photocopying of books as “course material” may at first seem like a big blow to the rights of the publishers. A closer look, however, will show that the judgment has not done anything which was not already provided for in the Copyright Act.
The reproduction of any work by a teacher or a pupil in the course of instruction is not to be considered an infringement of copyright laws. The Delhi High Court has merely included in the definition of “a teacher” – an educational institution (Delhi University). The rationale for the court to adopt this interpretation was that education in India, though at one time pursued in Guru-Shishya (teacher-disciple tradition), has now been institutionalised – both at the school and post school level – such that imparting of education by a teacher individually is no longer recognised. The word ‘teacher’ would, therefore, include an institution imparting education.
In the above circumstances, when the Delhi University changed its initial stance of having no connection with the photocopying shop, to stating that the photocopying was done under its authority, the act of photocopying was immediately beyond the purview of copyright laws.
Easy accessibility of knowledge is only for the betterment of society and it is also a fact that evolution is based on copying. That is, first we copy then we build on what we learn. In an evolutionary society, constant change of strategy is required. The publishers, too, will need to relook and rework the future of text books, whether it is by introducing special print editions or exploring the digital world for fresh ideas for easy dissemination of knowledge.
The writer is founding partner, Lall Lahiri & Salhotra
A hit for the academic press: Dev Robinson
A recent case before the Delhi High Court in copyright law has received much attention. The issue is whether copyright infringement can be asserted in photocopy compilations made essentially for student course materials.
The bone of contention is the rights of the copyright holder and those of students, as consumers of textbooks and extracts. The Copyright Act secures for the holder, among others, the right to make and issue copies of any substantial part of a book (Section 14). Exceptions exist, and two safe harbours are, the publication of works in a collection, some of which are copyright protected but mainly not, for instructional use (Section 52(1)(h)) and the reproduction of a work by a teacher in the course of instruction (Section 52(1)(i)). The judgment seems to have stretched the latter to constructively hold that all copying by Delhi School of Economics of the Delhi University may amount to reproduction of the works by a teacher. Giving the provision such a wide interpretation pre-empts the first provision and offends the legal order that no word of an Act may be rendered redundant by interpretation of another provision.
While the judgment is intended to ‘increase and not impede the harvest of knowledge’, it opens up discussions on intent and balance in terms of the economic motivation to write text books. Coming to the conclusion that photocopying does not amount to infringement, the judgment could be interpreted to mean that only one copy of each book relied upon may be purchased. There is potentially a zero-sum return for any of the stakeholders such as the authors, publishers and distributors, foreign or domestic. The very intent to increase harvest of current academic insights may be jeopardised.
The Act itself seems to suggest solutions. The onus would have been on Delhi University to have approached publishers for licensing, and if they refused, it would have had reasons to invoke forced licensing provisions in the Act. Separately, inspiration may be drawn from schemes of government. educational materials that could be made available while subsidising the materials through defined channels for the students. The judgment could be exploited by educational institutions which may result in likely destruction of the academic press.
The writer is national practice head, intellectual property, Shardul Amarchand Mangaldas. Apoorva Murali also contributed to the article
