This article is written by Amay Bahri, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from Lawsikho.com.
Copyright is a bundle of rights that gives the author of literary, dramatic, musical and artistic works the exclusive right to do or authorise to do certain acts in respect of a work or any substantial part of it thereof.[i] It protects the work of an author from unauthorised use and exploitation. As there is no requirement for the work to be registered to claim copyright protection, there arise numerous disputes alleging copyright violation. In times where marks play a significant role on a person’s future, the number of reference material has increased and this has given rise to various claims made against reference guides for copyright infringement. To proceed with such a claim, the party alleging infringement has to establish that the original work qualified for copyright protection, and that the challenged work is not covered under protections given to work. Such issues of copyright infringement have been covered by the Cambridge case in 2011.[ii]
Analysis of the approach taken in the Cambridge Dispute
Do questions have copyright?
In the Cambridge case, the reference guide in the challenge had questions that were taken from other reference material, thus for disposing of the allegation of copyright infringement, it was also necessary to understand whether questions in themselves have any sort of copyright protection. With regards to this question, the bench held that questions and exercises do have the protection of copyright. To reach this conclusion the bench relied on D B Modak[iii] case and explained that the questions in the reference material are creative and they satisfy the standard of skill, labour and judgement laid down by the Indian Supreme Court.
Having established that there is copyright protection, the court dealt with the issue of the reference guides being covered under the fair dealing exception mentioned under Section 52 of the Copyright Act. In applying the fair dealing clause, the court applied the four-factor test which was used by America to deal with its fair use clause. The Indian Copyright Act does not provide for fair use, thus due to the introduction of fair use provision, the judgment has received a lot of criticism.
Application of Four Factor Test in India
The Indian law has adopted this exception of fair dealing from the UK Copyright Act. In the UK the fair dealing exception was treated with a certain amount of rigidity and a two-step test was adopted to determine fair dealing defence. The two steps involved, checking whether the purpose of the infringing work is enumerated in the statute, and if it was, then it has to be established that the use was fair.[iv] Similar approach has been adopted by the Indian courts when dealing with the fair dealing clause under section 52. In the case of M/s. Blackwood & Sons Ltd. v. Anparasuraman[v] the defendant published guide books of plaintiff’s books. The defendant claimed fair dealing defence, but the court rejected the claim holding that private study does not cover situations where the copies of books are circulated, but only situations where students copy books for their own use. Thus the court understood fair dealing to not be applicable when there is intention to obtain profit from the use. It was also held that infringement cannot be permitted solely on the ground of public interest as no such relief is provided by the statute.[vi] Analyzing these two cases together, we can understand that India adopted an approach that is similar to the UK two step test. The strict reliance on the exceptions mentioned under the statute was expressed in the Suprecassettes case where the court understood the exception enumerated in the statute to be exhaustive.[vii]
The US copyright law does not provide an exhaustive list of exceptions, but they apply four factor tests to assess if the use would amount to fair use. The Indian courts have used the four factor test for determining fair use in the R.G Anand v. Delux Films case.[viii] Thus the use of four factor tests is not something unknown and unacceptable to the Indian courts. In addition to this, there is a large amount of academic writing which supports the shift from restrictive fair dealing clause to the four factor test and a liberal construction similar to the fair use clause.
The academic writers argue that the approach of fair dealing is very restrictive and inefficient. A more flexible approach will allow the court to deal with developing technologies.[ix] In a country like India, whereas the majority of the population struggles with the issue of having access to education and educational material due to poverty, a more liberal approach is required. In such an economy, if strict copyright protection is accorded then it would be difficult to have material which will be accessible to a larger segment of the population. This was noticed by the court in the DU Photocopy case[x] as well. Thus the four factor test can be applied in the Indian courts.
Analysis of the justification under Section 52 of the Copyright Act
It is important to understand the way the court has applied the four factor test and the reason for which it was held that the material in question did not infringe the copyright because this sets the standards that any reference book will have to satisfy to get protection of section 52 of Copyright Act.
There are four factors which are considered to determine if a work is transformative, and thus have protection of fair use clause.[xi] These factors are: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the substantiality of the portion used in relation to the copyrighted work as a whole; (4) the effect on the potential market for or value of the copyrighted work and proceeded to test the facts on each of these grounds.[xii] One of the arguments by the appellant was that the guide books will not have the protection of fair use as the books are used for commercial purposes. Merely using work for commercial purposes does not lead to the inference that the work cannot be protected by fair use doctrine, other factors have to be looked upon to determine the applicability of fair use.[xiii]
Considering the four factors, for the first and the second factor the court looked into the purpose of the new work (which was educational purpose) and also whether the work in question added some value with a different purpose or uses to show a different meaning or there is any value addition. The court with regard to this factor noted that the new work gave a step by step analysis of the questions and a proper way to answer the questions which would eventually help in understanding of the subject. In addition, the new work had a different pattern of use. The new work would not help in understanding the nuances, but would be useful only for purposes of examination, and the original work did not give such step by step analysis. The original work would be useful for the student to educate herself and understand the topic, while the work in appeal would be helpful in passing examinations but will not give complete understanding of the topic. Taking all of this into consideration, the court concluded that the new work is not mere substitute and qualifies the standard laid down by the EBC case, and hence is of a different character.
With respect to the third factor, the court relied on the fact that the new book gave its own description of each topic and did not merely copy it from the appellant’s work, thus the work is different and not a mere copy and there was no substantial copying. The court did not discuss much on the fourth factor but concluded that the potential market for both the goods is different and that there is not substantial harm to the market of original books by the introduction of new work. For this they relied on the fact that the new work was more expensive as compared to original work and that the original was a self-educating book, whereas the new book was useful only for passing exams. Thus the market of the old book could not be harmed by the new book as the nature of consumers is different.
Thus it was finally concluded by the court holding that reference books will be protected by the provisions of Copyright Act as long as the reference book/guide is not a cheap copy of other material and contributes to enhancing knowledge and understanding. But the protection will not be applicable in cases where the reference book is providing merely the questions from various sources and their answer without providing any analysis or any material for understanding of the question, the topic or the answer because in such a case the work could not be said to be transformative or derivative work worthy of protection.
The above analysis of the Cambridge case clarifies that reference guides are protected from claims of infringement of copyright, provided they are not a cheap copy of the work, and provide something that would help in enhancing the knowledge of understanding of the person using the material. A few years back there was a case[xiv] where copyright infringement was claimed against the selling of material containing past year question papers of ICSE Exams of class 10th, along with the model answers. The case was remanded back to the trial court by the high court in 2016, but the final judgment on the issue has not been delivered. Having said that, the above analysis demonstrates that it is extremely likely that the court might find there to be no infringement of copyright as the answer keys being provided along with the explanation add value to the work. Further, the 2012 amendment to Section 52 of the Copyright Act allows answers to questions which were part of examination to be covered under fair dealing provision. For the above reasons it is most likely that the court will find there to be no copyright infringement as the work would be covered under Section 52 of the Copyright Act in the Gurukul Books case.
[i] Section 14, The Copyright Act 1957, Act No. 14 of 1957
[ii] Syndicate of The Press of The University of Cambridge on Behalf of The Chancellor v. B.D. Bhandari &Ors. (MANU/DE/7256/2011)
[iii] Eastern Book Company and Ors. v. D.B. Modak and Ors. (MANU/SC/4476/2007)
[iv] Pro Sieben Media AG v. Carlton UK Television Ltd
[v] M/s.Blackwood & Sons Ltd. v. Anparasuraman AIR 1959 Mad. 410
[vi] Rupendra Kashyap v. Jiwan Publishing House, (1996) 38 DRJ 81 Para 24
[vii] Supercassette Industries v. Nirulas Corner House (P) Ltd., 2008 SCC OnLine Del 360
[viii] R.G Anand v. Deluxe Films (1978) 4 SCC 118
[ix] Pragalbh Bharadwa ‘A Critical Appraisal of the ‘Fair Dealing’ Doctrine Under Copyright Law in India: Highlighting the Imperative Need for Reform’ (2016) 2 HNLU SBJ 39
[x] The Chancellor, Masters and Scholars of the University of Oxford and Ors. vs. Rameshwari Photocopy Services and Ors. MANU/DE/2497/2016
[xi] Supra (note 3)
[xii] Supra (note 3)
[xiii] Cambridge University Press v. Patton, 769 F.3d 1232 (11th Cir. Ga. 2014)
[xiv] Gurukul Books & Packaging and Ors. v Evergreen Publications (India) and Ors. (MANU/DE/2698/2016)
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: