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Big Publishing v. Delhi University

The on-going litigation between a group of leading publishers and a small photocopying shop attached to Delhi University has all the elements of a legendary ‘fair dealing’ debate.

On one side we have Big Publishing (Oxford & Cambridge University Press along with Francis & Taylor) who argue that the use of their intellectual and creative product require recompense; on the other, we have students (many from impoverished sections of society) who argue that gaining a functional education in India is impossible without cheap access to prohibitively priced academic textbooks. This sets the stage for a landmark copyright battle in India.

To quickly recapitulate the facts: A small photocopying shop, attached to Delhi University, regularly compiles extracts from textbooks and makes it available to students of the university. A group of publishers have sued Delhi University & Rameshwari Photocopy Services for copyright infringement of their works. SpicyIP has obtained a copy of the plaint, which can be accessed here.

Shamnad Basheer’s recent article exemplified the need for a fairer view of ‘fair dealing’, keeping in mind the public interest at stake. But I argue that by analysing the black letter law, along with recent precedent from the Delhi High Court, one can safely reach the conclusion that the compiling photocopied materials from textbooks for educational purposes, within a reasonable threshold, is permissible under Indian copyright law today.

Issues at hand

(a) Whether the copying done is for a permissible purpose (b) Whether the dealing is ‘fair’.

Legality of Copying Extracts from Books

I will begin by examining whether the compilation and circulation of extracts from books is permissible. This is a useful starting point since the common rhetoric employed by the publishers is that they are not charity houses and should not be giving out their works for free. Strictly speaking however, copyright law recognises the need to reproduce/distribute parts of a protected work, without making payments to the copyright holder, in certain situations. It is the essence of ‘fair dealing’.

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Fair dealing is enshrined in S.52 of the Indian Copyright Act which provides for a wide educational fair use exception (See Lawrence Liang’s excellent article on exceptions and limitations for education in copyright law).

Specifically on the issue of whether distributing extracts to students involvess a permissible purpose, we may refer to the recent decision of the Canadian Supreme Court in the case of Alberta (Education) v. Canadian Copyright Licensing Agency (2012). In this case, the court ruled that reproducing material for the purpose of teaching in classrooms would pass the ‘permissible purpose’ test. One may wish restrict the scope of this decision to ‘teaching in the classroom’ alone, but given that the underlying rationale contained in this decision to, that is to encourage private or group studying using such materials, along with the fact that the Candian fair dealing provision mirrors the Indian one, it is likely that Indian courts will employ a liberal interpretation. For an analysis of the decision, you can go here.

(a) Purpose of the end-user: The issue of whether the reproduction in this case falls within ‘permissible purpose’ is straightforward. The purpose’ to be identified here is that of the end-user. In this case, the end-user is a student of Delhi University and the purpose is purely educational (unless these same students are running coaching centres that would involve using the material for a commercial purpose)

(b) Purpose of the copier: This aspect is relevant to the determination of whether the dealing is ‘fair’. It is here that the relationship between the University and Rameshwari Photocopy Services (the photocopying shop) becomes significant. One could assert that the shop has a commercial objective. But given that the shop acts as an agent of the University (after a tendering process and the execution of a license agreement with strict guidelines), the purpose of the copier (Rameshwari Photocopy Services) is conterminous with that of the University. And it goes without saying (also stated in the motto) that the objective of the University is to promote the goals of education, adequately squarely covered under the exceptions to copyright. While I have focused on a very recent decision to argue my point, Danish Sheikh over at Kafila has made a thorough comparative analysis on this point.

How much is too much?

Courts from around the world have dealt and it may be wise to defer to them on the extent of permissible copying. In May 2012, a U.S. court delivered the decision in Cambridge University Press v. Becker, in which it was declared that a university is not required to obtain a license for reproductions involving less than 10% of the total pages in a particular book. Professor Basheer in his Indian Express editorial argued that if an IP-maximalist regime such as the U.S. can establish the threshold at 10% of the total page count, India should take the lead and peg the threshold at 20%. And I fully agree with him. Therefore, it is reasonable to assume that courts in India would peg the fair dealing threshold at 10-15% of the total page count.

The second leg of my analysis involves a determination of whether this threshold has been breached here. For some context, it might be useful to refer to a piece by Rahul Matthan in the Indian Express where he argues that the publisher are within their right to file the suit. For my calculations, I have used the following methodology: The threshold being used is that set by the judges in Becker – 10% of the total page count of the book (although it is likely that this will be increased in India). The table contains the total page count of a particular book and the amount reproduced in a given course pack from that same book.

Based on such calculations, it appears that the average percentage of reproductions is a lowly 8.81 %.

Percentage analysis small

This is well below the fair dealing threshold set out in Becker. Further, looking at each of the instances individually, it is found that a majority of the cases involve reproduction of less than 5% of the total page count of the book. Out of the 23 books in question, only 5 extracts exceed the 10% threshold (these have been marked in red). Given that this threshold is likely to be raised to 15-20%, one finds that there is only one instance where this threshold has been breached. To suggest that the photocopying shop and Delhi University should shell out INR 60,00,000 in damages as a result, is quite frankly, a little upsetting. When did we become so fixated on the economic exploits of copyright that we forget the very purpose of the regime – to promote creativity and advance the progress of arts and science.

Thus, in my estimation, both tests – the permissible purpose and fairness test – have been passed in this case. This is not a plea for the abolition of copyright or an argument that because students cannot afford highly-priced academic textbooks, they should be allowed to infringe copyright. It simply appears that the threshold for infringement has not been breached and in the light of the public interest at stake, Delhi University and the photocopy shop should not be held guilty.

Image by Morburre

This post was first published on SpicyIP

About Amlan Mohanty

Amlan is a lawyer based in India. He engages in research, writing, speaking and teaching at the intersection of technology, law and policy.