The article is written by Ansruta Debnath, a student of National Law University Odisha. This article explores the series of orders and judgements that were given over 5 years in the famous DU copyright case and their implications in the present context.
Copyright provides exclusive rights over a person’s creative works. Numerous tests have been created to understand what can be copyrighted and what not. Once copyright is gained, problems arise in a separate aspect: to what extent is that copyright applicable? Students all across the world use books published by various publishing houses. Many times, due to financial constraints, they are unable to purchase the book itself. Thus, in general, either library comes to the rescue or pages of the books are photocopied for personal use. The case of The Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Anr. (2016) was a landmark judgement that found that photocopying portions of copyrighted books en masse were perfectly legal when it was done for educational purposes. This article enumerates the series of judgments and orders that were given by the Delhi High Court since 2012 when the lawsuit was first filed and explores the legal issues and findings of the Court.
Facts of the case
Rameshwari Photocopy Service, founded in 1998 and owned by Dharampal Singh, is a photocopy shop present on the Delhi School of Economics (DSE) premises in Delhi University’s North Campus. This shop was the primary supply point of a variety of course materials and was often visited by DSE students. This was because some of the professors at the Delhi School of Economics had developed course packets that included pages from books published by various international publishing houses. Rameshwari Photocopy Service was entrusted with duplicating and binding these pages and distributing them to students for 50 paise (US$0.01) each page.
In 2012, Oxford University Press, Cambridge University Press (UK), and Taylor & Francis Group (UK), as well as Cambridge University Press India Pvt. Ltd. and Taylor & Francis Books India Pvt. Ltd., filed a copyright infringement lawsuit against Rameshwari Photocopy Service and the University of Delhi in the Delhi High Court for distributing copied portions of their published books without any appropriate license.
The lawsuit generated a ton of support from students, professors and activists alike for Rameshwari Services, with numerous petitions being filed for joining the defence of the case. For example, the Association of Students for Equitable Access to Knowledge (ASEAK) and the Society for Promoting Educational Access and Knowledge (SPEAK) requested that they be impleaded as defendants. Subsequently, they were made defendant number three and four respectively.
In March 2013, more than 309 famous writers and professors from around the world wrote to the publishers, urging them to drop the lawsuit. Surprisingly, 33 of the 309 signatories had a direct relationship with the plaintiff-publishers and were creators of works whose copyright was allegedly infringed by Delhi University and its photocopier. Eminent scholars such as Thomas Blom Hansen, Partha Chatterjee, Ayesha Jalal, Christophe Jaffrelot, Veena Das, Pratap Bhanu Mehta, Marc Galanter, and Professors Richard Falk, Arjun Appadurai, Jonathan Parry, Ramachandra Guha, Farid Esack, TN Madan, Ian Copland, Tanika Sarkar, and Uma Chakravarty were among those who signed.
In late 2012, the Delhi High Court passed a temporary injunction preventing Rameshwari Services from selling the photocopied course packets. The Court also instructed a Local Commissioner to visit the shop premises without prior notice and confiscate all allegedly infringing copies of the plaintiff’s works created by it after compiling an inventory of them.
In 2016, the lawsuit was rejected and the injunction was removed by Justice Rajiv Sahai Endlaw, enabling Rameshwari Photocopy Services to resume selling the course bundles. Later in the same year, a two-judge bench set aside the previous order and allowed for the lawsuit trial to continue, saying that the reproduction of copyrighted books for educational purposes was not copyright violations. At the same time, the Delhi High Court refused to place an injunction on the shop and instead asked it to submit periodic reports of the coursepacks it was selling.
In 2017, an open letter was sent to Oxford University Press by students, alumni and academics of Oxford University, requesting them not to appeal the Division Bench decision in the Supreme Court of India. The three publishers, Oxford University Press, Cambridge University Press (UK), and Taylor & Francis Group (UK) consequently withdrew from the lawsuit saying they did not want to get entangled in legal battles with their stakeholders, the educational institutions.
The Indian Reprographic Rights Organisation (IRRO) petitioned the Supreme Court, appealing the Division Bench decision of 2016. The IRRO is a copyright society that was established by publishing houses to give out affordable licenses for reproducing products that had copyright restricting their dissemination. The Supreme Court held that, given that the initial litigation brought before the Delhi High Court had been dropped by the publisher plaintiffs, and that the IRRO was only an intervenor in the lower court proceedings, the Supreme Court chose not to intervene in the High Court ruling.
Relevant legal principles
The main provision over which the entire legal battle proceeded was Section 52(1)(i). Section 52 talks about certain acts which do not constitute copyright infringement. Section 52(1)(i) in particular stated that the reproduction of any work, by a teacher or a pupil in the course of instruction; or as part of the question to be answered in an examination; or answers to such questions all constituted fair dealing of that work.
A primary question was whether the case would follow under Section 52(1)(i) or Section 52(1)(h). This subsection says that for bonafide usage of copyrighted works, the publication of the same could be allowed. But that was limited to only two passages from works of the same author published by the same publisher during five years.
Because of the absence of substantial Indian case laws in this regard, international treaties were also cited, namely the Berne Convention, 1886 and the Agreement on Trade-Related Aspect of Intellectual Property Rights, 1995. The relevant articles were-
- Article 9 of the Berne Convention: Allows for governments to make legislation to govern the reproduction of copyrighted works in special cases.
- Article 10 of the Berne Convention: This article allows for quotations to be made of works already in the public domain, provided it is compatible with fair practice. Moreover, this article also states that the utilization of copyrighted works can be used for teaching with appropriate agreements.
- Article 13 of TRIPS: This talks about exceptions to exclusive rights only in special circumstances.
Arguments of the parties
The plaintiffs argued that the inclusion of portions of their copyrighted published works in the coursepacks by Rameshwari Services upon the authority of the University of Delhi amounted to institutional sanction of copyright infringement.
Since the coursepacks contained only photocopied parts of the copyrighted publication, they were functioning as textbooks and thus competing with the sale of the officially published textbooks. Rameshwari was alleged to have been operating commercially, by selling the coursepacks at the rate of 40-50 paise per page as opposed to the established market rate of 20-25 paise per page of any photocopy. It was also argued that Section 52(1)(i) of the Copyright Act would not apply as Rameshwari could not be equated to the reproduction by a teacher to students for the instruction of knowledge.
It was contended that alternatively, the reproduction in the manner carried out by Rameshwari Photocopy Services if held falling within the ambit of Section 52(1)(i), would render Section 52(1)(h) superfluous. Because the course materials were being used for ‘preparation of instruction’ instead of ‘instruction’, the same did not fall under Section 52(1)(i). Instead, Section 52(1)(h) should apply which allows for the reproduction of only two passages from works by the same author published by the same publisher during any period of five years.
Article 9 and Article 10 of the Berne Convention, 1886 as well as Article 13 of the Agreement on Trade-Related Aspect of Intellectual Property Rights, 1995 was also relied upon by the plaintiffs.
The plaintiffs finally pleaded that the defendants must be asked to get licenses from the Indian Reprographic Rights Organisation because the audience of such published books were largely academic institutions and if unrestricted reproduction from these books were allowed the academic publishing business would suffer irreparable losses.
The following were the judgements that were primarily relied upon in the arguments of the plaintiffs and the same were cited to argue for an equitable balance between academic publishers and students-
- Princeton University Press v. Michigan Document Services Inc. (2012),
- Province of Alberta v. Canadian Copyright Licensing Agency (2012),
- Basic Books Inc. v. Kinko’s Graphics Corporation (1991).
In all the above-mentioned three cases, the issue involved was an infringement of copyright through the reproduction of excerpts of copyrighted books of various publishing houses. In all the cases, it was held that the defendants were unable to establish fair use of the excerpts.
- Chancery 143 Hyde Park Residence Ltd. v. Yelland (2000): The plaintiffs used this case to plead that relief could not be denied to them in the name of ‘public interest’.
The defendants contended that their act was well within the ambit of fair dealings as present in Section 52 of the 1957 Copyright Act. Rameshwari Photocopy Services said that they could not have competed with the publishing houses as they charged a nominal rate for its services as fixed by the license deed between itself and the Delhi School of Economics. It further contended that their act was for the benefit of the students as many of them could not afford to buy the books whose extracts were part of the syllabus of the student’s respective courses.
Delhi University categorically used Section 52(1)(i) as their defence. The University argued that Rameshwari Photocopy Services had been granted a licence to operate a photocopy shop on its campus to allow photocopying by students for educational and research purposes. Denying the University’s request to issue books to Rameshwari Photocopy Services to prepare coursepacks, the University argued that there is no limitation on the quantum of reproduction under Section 52(1)(i) of the Copyright Act, 1957 and that because Section 52(1)(i) covers reproduction for educational purposes, unlimited photocopying would be permitted.
It was further argued that there was a difference between the words ‘reproduction’ as in Section 52(1)(i) and ‘publication’ as in Section 52(1)(h). ‘Publication’ denoted publishing works for the public whereas in the present scenario the students had a narrower connotation. Accordingly, it was contended that Section 52(1)(h), could not be made applicable.
The University of Delhi argued that both the Berne Convention and the TRIPS Agreement allowed member states to propose legitimate exceptions to copyright and that the educational exemption established under Section 52(1)(i) constituted such an exception.
SPEAK pleaded that the market of the plaintiffs was not being affected by the actions of Rameshwari Photocopy Services. This was because the coursepacks contained only extracts from the books and not the entire book itself. Furthermore, it was contended by ASEAK that ‘instruction’ could not just be limited to that in classrooms only; it had to include other forms of ‘instruction’ as well. The interpretation of Section 52 had to be done liberally as the purpose of the Copyright Act was to develop and transmit knowledge in society by balancing the interests of work producers with the interests of society as a whole. Section 52(1)(h) also could not apply as it referred to third persons and not teachers and students.
The following were the judgements that were relied upon in the arguments of the defendants-
- Princeton University Press v. Michigan Document Services Inc.: The minority opinion that found no copyright infringement was relied upon. In this case, the minority opinion had said that the identity of the person operating the photocopy machine would not be material since the effect of commercial photocopying in bulk quantities was the same as photocopying by each student acting separately.
- Province of Alberta v. Canadian Copyright Licensing Agency (2012): Dissenting opinion which had not found any copyright infringement was relied upon.
- Longman Group Ltd. v. Carrington Technical Institute Board of Governor (1991): This case was cited to emphasize the scope of ‘instruction’ in Section 52(1)(i) of the Copyright Act (as stated in the judgment of the case in study).
The main issues, in this entire case, can be summarised as follows-
- Whether the right of reproduction of any work by a teacher or a pupil in the course of instruction is absolute and not constricted with the condition of it being fair use?
- What is the span of the phrase ‘by a teacher or a pupil in the course of instruction’ in Section 52(1)(i)(i)?
- What constitutes ‘publication’ and ‘reproduction’?
The interim injunction of 2012
In 2012, after the lawsuit was first filed, the plaintiff-publishers were able to have an interim injunction imposed against the defendants. The Delhi High Court opined that Rameshwari Services had no right to compile and sell the coursepacks.
The University of Delhi then filed an appeal which got dismissed by a two-judge bench of the same Court.
Dismissal of the lawsuit in 2016
In September of 2016, Justice Rajiv Sahai Endlaw dismissed the lawsuit and lifted the 2012 interim injunction primarily on the grounds of Section 52(1)(i) of the Copyright Act of 1957 which stated that the reproduction of any work by a teacher or a pupil in the course of instruction did not institute copyright infringement.
The single-judge bench also made the following observations-
- Copyright was not a divine and inherent right that gave absolute ownership to the entity that owned the copyright. Instead, the primary aim of copyright was to encourage the harvest of knowledge and stimulate the intellectual growth of the general public.
- Section 52 could be an all-encompassing defence for educational institutions that might get entangled in such lawsuits.
- The word ‘teacher’ in the Section did not only refer to individual teachers but applied to educational institutions as a whole.
- The legislature had not included the word ‘lecture’ deliberately. They did that because they did not mean to narrow down the meaning of the word ‘instruction’ as used in the Section. This word included lectures as well as anything else that the teacher instructs the student that helps them acquire substantial knowledge on the subject.
- The imparting and receiving of instruction was never limited to face-to-face interactions but included a process of the teacher readying herself/himself for imparting instruction, setting syllabus, prescribing textbooks, reading and ensuring, whether by the interface in classroom/tutorials or otherwise by holding tests from time to time or clarifying doubts of students.
- Since, photocopying or clicking pictures of books was not against the law, photocopying by a shop, as instructed by the University, for the benefit of students could also not be considered an instance of copyright infringement.
- Because photocopying could be done by the University, the Court felt there was no reason why photocopying could not be done by someone else, as instructed by the University. The Court felt that Rameshwari Services was contracted by the University to provide coursepacks and there was no difference between using a photocopier installed within the University and one installed outside it.
Justice Rajiv Sahai Endlaw also said that taking a license would have been necessary if and only if the defendants fell outside the purview of Section 52. This decision was then appealed by the plaintiffs.
The landmark judgement of the Division Bench in 2016
On December 9, 2016, the Division Bench of the Delhi High Court ruled in a landmark decision that the preparation of ‘coursepacks,’ i.e. compilation of photocopies of the relevant portions of different books prescribed in the syllabus, and their distribution to students by educational institutions, did not constitute an infringement of copyright in those books under the Copyright Act, 1957, as long as the inclusion of the works photocopied (regardless of quantity) pertained strictly to educational needs. The following were the main observations in the judgement written by Justice Nandrajog-
- The Court decided that Section 52 did not have a cap or limitation on fair use. Rejecting the four-pronged test used in foreign jurisdictions, like the United States of America, the Court opined that fairness of use had to be inferred exclusively from the purpose of the use, i.e., education in this case, and not the qualitative or quantitative extent. Thus, if any material was being used for educational purposes, then that would be considered fair within the meaning of Section 52, irrespective of the fact whether the entire copyrighted book or part of it is being used.
- The argument that the sale of the publishers’ books would be affected was unequivocally rejected by the Division Bench. It held that, in the absence of the photocopied parts, the students would just refer to the multiple copies of the books which were already present in libraries of the various institutions. It was further observed that such a sale of photocopies was likely to increase and expand the market of these copyrighted books.
- Section 52(1)(i) was interpreted wherein it was held that ‘teacher’ and ‘pupil’ included teachers and pupils. Section 13(2) of the General Clauses Act, 1897, was relied upon and it was held that ‘reproduction’ would include reproducing multiple copies of a work. Thus, photocopying in bulk was not an infringement of copyright.
- The Court further agreed with the defendants that the course of instruction included not only a classroom lecture but also everything else that is generally involved in teaching, like taking notes, studying them and studying ancillary materials. Comparisons were drawn between Section 21(4) of New Zealand’s Copyright Act, 1962 and the contended section of the Indian Act. The Kiwis’ interpretation of Section 21(4) which had the words ‘in the course of instruction’ in the case of Longman Group Ltd. v. Carrington Technical Institute Board of Governors (1991) was held to be relevant in the present scenario and was accordingly relied upon while reaching to a conclusion.
- The argument that dissemination to students did not constitute ‘publication’ because ‘publication’ implied ‘public’ which was wider than ‘students’ was rejected by the Division Bench. At the same time, it was held that the act done by Rameshwari was not ‘publication’ within the meaning of Section 52(1)(h) as that required an element of a certain degree of profit, which was missing in this case.
- Further, it was held that it was very justified that teachers and students used an intermediary for publication. It was considered common sense that teachers would not themselves purchase photocopying machines to make copies of materials. Thus, using the services provided by a shop was not copyright infringement.
- A major contention of the plaintiffs was that Section 52(1)(i) applied to individual teachers and in this case, the University of Delhi had provided institutional sanction to Rameshwari for photocopying, making the Section inapplicable. The Court, while rejecting this argument, said that the University was simply tasked with laying down the course guidelines. The teachers were responsible for allotting study materials for each of the courses. Thus, Delhi University could not be made liable for giving institutional sanction as the coursepacks were made and distributed by the teachers themselves, making the case fall comfortably within the ambit of the given Section.
- The plaintiffs had relied heavily on cases of foreign jurisdictions which were found to have no relevance in the Indian context. Furthermore, the Delhi High Court held that the Berne Convention and TRIPS were enacted in such a way that it allowed adequate allowances to individual signatories to formulate their own rules based on specific and peculiar circumstances of the country.
The appeal was thus dismissed, and the lawsuit trial was reinitiated to determine whether the coursepacks indeed were of appropriate and reasonable need. The Court felt that expert opinion was required in the matter and allowed the plaintiffs to amend their plaint accordingly. It further ordered the trial court to make a factual finding on the legality of these copies. The Court refused to award an interim injunction in favour of the publishers, instead, directed the photocopier to keep a record of the course packets photocopied and distributed to students and to file it in the action every six months.
The 2016 judgement in this case unequivocally widened the ambit of reproduction of copyrighted works in the sphere of education. By allowing such reproduction, the Courts increased the accessibility of various foreign publications which are generally very expensive to students of varied financial backgrounds.
Recently, a similar issue has reached the Delhi High Court. The defendants are involved in Sci-Hub, a website that provides pirated versions of research papers. The lawsuit has been launched by the American Chemical Society, Elsevier and Wiley who stated that Sci-Hub was violating copyrights. Sci-Hub’s defence primarily rests in fair dealings and legal experts have said that because of the Rameshwari case, there is a high chance that the case will be decided in favour of the website.
Thus, it is made very clear that students and teachers can reproduce copyrighted books without any fear of liability if it is done reasonably and fairly for the furtherance of education. The case in question never found closure due to its withdrawal, but the question of whether the distribution of copied parts of copyrighted books for education was legal had already been settled. The question that was required to be answered was whether in this case, the parts of books that were being copied and sold were essential for education.
This was an issue of fact that will vary on a case to case basis. But, publishing houses must take note that arguing for copyright infringement just based on the fact that someone other than them has been disseminating their works will not hold up, at least in India. Because this was a Delhi High Court judgement and not a Supreme Court one, it can only have persuasive value in other high courts. But it can be reasonably expected that when a need arises, courts will take into cognizance the needs of students and place a higher value on them than the needs of the rich publishing houses, unless there is a legitimate infringement of the latter’s rights.
- A day in the life of Rameshwari Photocopy Service shop, Delhi University | India News, The Indian Express
- The Chancellor, Masters & … vs Rameshwari Photocopy Services & … on 16 September 2016
- The Chancellor, Masters & … vs Rameshwari Photocopy Services & … on 9 December 2016
- DU Photocopy Appeal Decision: Another Landmark Victory for Access to Education in India | SpicyIP
- The Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Ors. [DU Photocopying Case] | SpicyIP
- Copyright Act, 1957
- Is this a ‘fair’ solution to the OUP/CUP-DU copyright infringement lawsuit? | SpicyIP
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