Delhi University Must Defend
Although some have suggested that the most appropriate legal position for Delhi University to take would be to settle with the publishers and procure licences from the IRRO (a copyright society set up by the publishing industry), I respectfully disagree and state my objections as follows:
Quantum of copying
The first question that must be examined is how much Delhi University/Rameshwari Photocopy Services actually copied in the course of producing course packs and whether it is permissible under current law. Previously, I made some calculations, which suggests that the quantum of reproduction from most books was under the ‘global standard’ of 10%. A summary of my findings are as follows:
It appears that, under current Indian law and relevant international precedents, more than half of the books involved in this case are not infringing, i.e. the quantum of reproduction is less than the accepted fair dealing threshold of 10% (precedent in the United States). It must however be borne in mind that this fair dealing threshold might be increased by Indian courts in view of its unique socio-economic conditions and educational challenges. If it is raised to 20%, then 14 out of 19 books do not infringe. Therefore, I find it to be quite premature to state that D.U. will be found guilty without doubt.
Excuse me, but what’s a global standard?
This brings me to the issue of a ‘global standard’ itself. How can there be a global standard for the amount of reproduction permissible by a university to facilitate complete access of necessary reading material to its students? Should this not be a measure of the university’s capabilities to procure an adequate number of textbooks so that each student in a particular classroom has an accessible copy of the material? Can a university library in the heart of Bihar and the library at Harvard University be held to the same standard of permissible reproduction?
There is certainly room for flexibility and the law must account for country-specific economic factors such as per capita purchasing power, cost and availability of books, or more appropriately, a case-specific determination based on the end-user.
Why place quantitative restrictions at all?
The second issue is whether complete reproduction of works is permissible under certain circumstances (for example, to make course packs for students). Given that S.52(1)(h)(i) of the Indian Copyright Act does not lay down any quantitative limit on permissible reproduction, it is again, in my opinion, incorrect to draw a conclusion on the outcome of this case.
It is here that the philosophical doctrines applicable to intellectual property, copyright in particular, become important. If one were to merely reproduce parts of a textbook for some unstated higher social objective, the publisher is still in a position to exploit that particular book commercially in other ways (even within the education sector). The book still exists. On the other hand, if the book were to be stolen the publisher would not be able to do so. This is why the law itself recognises liberal exceptions to copyright law, contained within doctrines such as fair dealing. This appears to be an appropriate situation to invoke such provisions.
While it is important to recognise the need for incentives to ensure that the publishing industry continues to invest in India (see Prashant Reddy’s piece in the Business Standard, for example). But the more appropriate solution, to my mind, would be a deliberative and not legal.Publishers and educators in India must come together and decide how best to ensure access to knowledge while making it a profitable venture for publishers. This is primarily the prerogative of the universities and the publishers, since the consumers of such books appear to be the universities and not students themselves (their attempt to suggest university-procured licences from IRRO is another strong indication of this fact). This is why it may be time for politicians such as Kapil Sibal and other members of the Ministry of Human Resources Development to engage with this issue.
All of this does not even broach the question of the damages sought by the publishers from the university, which I find the most misplaced – INR 60,00,000 for less than 2.5% infringing reproduction of the entire catalogue. Although publishers will certainly try to advance evidence of lost sales and prospective losses, the figure itself seems slightly absurd at face value.
To conclude, Delhi University & Rajeshwari Photocopy Services might appear to be underdogs against mighty Big Publishing, but defend they can and must. Unfortunately however, the unnecessary social and economic costs as a consequence of this litigation, will hardly be acknowledged.
Note on the methodology used for calculations: An objection was raised with respect to my methodology, but the counter figures provided are hard to make sense of. In several cases, the number of pages allegedly copied from the chapter exceeds the total number of pages in the chapter itself. These errors can also be gleaned from the plaint submitted by the publishers:
Previously, I had used figures referenced in the suit documents, but I have revised my figures assuming that the entire chapter has been copied (although this may not be the case in actuality). Where the plaint itself mentions a lower figure, (i.e. in cases where the entire chapter has not been copied) I have used the lower figure. The summary of findings employs the revised methodology.
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