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Five Reasons Why Course Packs are Legal in India

The recent order passed by the Delhi High Court against Delhi University and Rameswhari Photocopy Service, restraining both parties from producing course packs, provides the context for this post. Quite simply, the order does not even begin to consider the applicable defences and has held course packs to be illegal in India. The following points demonstrate why they are, in fact, and ought to be legal under current Indian law.

1. Indian law allows reproduction in the course of instruction

Section 52(1)(i)(i) of the Indian Copyright Act says ‘reproduction of a literary work in the course of instruction is not copyright infringement‘. There can therefore be no argument that photocopying of course packs is not permitted under Indian law. The two relevant phrases in question are ‘reproduction’ and ‘course of instruction’:

(a)   Reproduction: It is obvious that making a copy of a course pack by using a photocopy machine is a permitted form of reproduction. One may also reproduce extracts from books in various other ways (one may have it scanned, for example) which is also a permitted form of fair use (see Hathi trust case). With advances in technology, it is unpredictable what the prevailing technological method for copying will be in the future. But the legislative intent behind this exception must not be lost sight of. More importantly, Section 32 of the U.K. Copyright Act permits reproduction in such cases, but explicitly prohibits ‘reprography’ (reproduction in printed form). India does not prohibit reprography. Given that S.52(1)(i) is an educational exception and is to be interpreted accordingly, there is no doubt that photocopying of educational material is permitted in India currently. (Thanks to Professor Shamnad Basheer for pointing this out)

(b)  In the course of instruction: This definition would include any activity that imparts knowledge or skill or generally involves educating. As such, classroom teaching would squarely fall within its ambit. From experience, readings contained in course packs are prescribed by teachers to be discussed during class to better understand a particular issue/argument/topic. Thus, course packs would be covered under the phrase ‘in the course of instruction’.

Finally, read together, ‘reproduction in the course of instruction’ would include photocopying reading material from text books – whether reproduced by a pupil inside the classroom or outside, and for use inside the classroom or outside, as a means to understand an argument, or to facilitate the impartation of knowledge by the teacher (also see the interpretation of S.52(i) by Pranesh Prakesh and Lawrence Liang here).

2. Current Indian law allows fair dealing for private use including research

Section 52(1)(a) of the Act says ‘fair dealing for the purpose of private use, including researchis not copyright infringement. Fair dealing would include creating a copy of the work as well.

In a decision delivered this year, the Supreme Court of Canada held that the use of course packs by students falls within the definition of ‘private study or research’. Further, ‘private’ does not mean studying in isolation, but includes the classroom as well. The Court also determined that ‘instruction’ (found in India in Section 52(1)(i)) and ‘research and private study’ (found in S.52(1)(a)) were in fact a unified purpose since the purpose of the copier is to facilitate the research and private study of the student.

In the Indian context, N.S.Gopalakrishnan’s comments in the Annual Survey of Indian Law (2009) also supports this view, wherein it was observed that fair dealing for private use, research and criticism or review permits an individual, in some circumstances, to reproduce the complete work. It is therefore clear that making a copy of complete work or performing a work for private use or research is capable of being covered within the scope of fair dealing.

course-packet

3. Course packs are legal in other countries

There have been decisions from other parts of the world that declare the making and distribution of course packs for a non-commercial, educational purpose to be legal, with no requirement to obtain a license. In Canada, the Alberta case (discussed above) found the making and circulation of extracts to be legal under the ‘private study, or research’ exception. It also said ‘instruction’ and ‘research’ are fused purposes and should be read together and since students use these materials in the course of instruction and for private use, this is permissible fair dealing. In the United States of America, the decision in Cambridge University Press v. Becker clearly indicates that the making of course packs, without permission of the owners, is permitted subject to a fair use threshold of 10% (see Danish Sheik’s piece on Kafila) This is also important because in the present Delhi University copyright dispute, a majority of reproduction is under 10%.  There are similar legal precedents in several other countries as well.

India’s fair dealing exception is almost identical to Canada’s. In fact, India’s provisions are actually wider in scope (the Indian Copyright Act says ‘private use, including research’ while Canada uses ‘private study, including research’). With the additional exception for ‘reproduction in the course of instruction’, there is no doubt that course packs are legal in India.

4. Photocopying of course packs is not piracy and is a bona fidely and supervised activity

The production of course packs, although perceived to be an unregulated practice, is actually a systematic method of furthering instruction by teachers, especially considering the high costs, limited copies with libraries and frequent unavailability of textbooks in India. This is clearly demonstrated by the license agreement between Rameswhari Photocopy Service and Delhi University where strict guidelines have been prescribed by the Delhi School of Economics to ensure it is for bona fide use and open to students and faculty only:

It is also clear that the permission given to Rameshwari covers photocopying of course packs as well:

More importantly, the photocopy shop here is only an extension of Delhi University and Ratan Tata Library and is even located within the university campus. The shop receives instructions from the Department on what exactly to photocopy, based on reading lists made available by professors, and are barred from undertaking any ‘outside jobs’. The license agreement also specifies the price that must be charged:

It must also be borne in mind that the vendor was selected by the university after a careful tender process. Moreover, the prevailing market rates for photocopying a page in the vicinity ranges from 1 rupee to 2 rupees. The license agreement states that all operational costs, purchase of equipment, and other expenses must be borne by Rameshwari. This makes it amply clear that it is not a commercial enterprise with a profit motive since the rate of 40 paisa per page is the bare minimum required to operate the said venture.

The above factors are also what distinguish Rameshwari from Kinkos and similar shops that produce course packs and have been held by American courts to be commercial enterprises.

5. The amounts copied in course packs are within the permitted threshold

The course packs mentioned in the plaint do not involve the reproduction of an entire book even in a single case.  In fact, a majority of the reproduction is well below the fair use threshold of 10% (a minimum of 3.5%) according to US precedent). However, the figure of 10% itself must be challenged keeping in mind India’s unique socio-economic conditions and the fact that access to knowledge is a greater challenge in India as compared to the U.S.

Table of reproduction

Given all of this, how is it that the Delhi High Court passed an order restraining the making of course packs? It simply could not have been passed taking the fair dealing defences into account, since even those cases where approximately 3% of an entire book is copied has been declared to be illegal by the court (which is unarguably permitted, irrespective of the other educational exceptions to copyright). And if it is on the basis of some alleged admission by Delhi University (actually a grammatical mistake), hammered out by counsel for the publishers in court, then this may be overturned in a review petition. If not, there will surely be an intervention petition on this matter in the near future.

(Thanks to Pranesh Prakash and Rijul Kochhar for their inputs. Images from dynamicbookstore.com and woodley wonderworks)

This article was first published on SpicyIP

About Amlan Mohanty

Amlan is a lawyer based in India. He has been writing about technology and intellectual property for the last five years.