[Note: Author and Contributor of this blog post is Risabh A. Gupta, 3rd Year Student, B.B.A. LL.B. (Hons.), National Law University, Odisha]
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 in
copyrighted works. This case holds paramount significance in mapping the future
of use of copyrighted books and materials for affordable dissemination of
knowledge in schools and colleges.
BRIEF
FACTS OF THE CASE
A small photocopying shop, Rameshwari photocopy
services, attached to Delhi University is entrusted by the university with
complying extracts from various copyrighted books and materials. Now, the
Oxford and the Cambridge publishing houses have alleged that by photocopying
the copyrighted books and materials, the photocopying shop and the Delhi
University have violated their copyright. Allegedly, the publishing houses have
sued for copyright infringement.
THE
TWO LEGAL QUESTIONS INVOLVED
Generally, matters involving copying
materials from copyrighted sources involve two fold tests in order to ascertain
whether the copied material is permitted or not.
1. Is
the dealing ‘fair’?
2. Is
the copying done for a permissible purpose?
Copyright law in India and all across
the world recognize that sometimes using/reproducing/distributing parts of a
copyrightable work, without making payments to the copyright holder, are
necessary and permissible. This is the essence of 'fair dealing'.
1. ‘Fair
Dealing’ enshrined in Section 52 of the Indian Copyright Act, 1957
The fair use doctrine is recognized as a
valid defense to copyright infringement in most countries including India,
where Section 52 of the Copyright Act permits one to “fairly deal” with any
copyrighted work for “private or personal use including research”. Section 52
(1) (i) of the Copyright Act, 1957 as amended in 2012 reads as follows-
52.
Certain acts not to be infringement of copyright.
– (1) the following acts shall not constitute an infringement of copyright,
namely:
(i)
The reproduction of any work-
i.
By
a teacher or pupil in the course of instruction; or
ii.
As
part of the questions to be answered in an examination
iii.
In
answers to such questions;
Now, from the bare reading of the
aforesaid provision, it is clear that as far as the reproduction for the
purposes defined in point (i) to (iii) above is concerned, the same is exempted from the purview of infringement.
Thus, Section 52 (1) (i) of the Copyright Act would clearly reveal that any
such reproduction whatsoever is justifiable as non-infringing work.
2. Copying
done for the permissible purpose
Firstly, it needs to be ascertained as
to how much the Delhi University/ photocopying shop has copied. Secondly it also
needs to be seen whether the extracts copied is permissible under the Indian
copyright law or not?
A very comprehensive and exhaustive
analysis done by SPICYIP blog points
out that the extracts which have been copied by the Delhi
University/photocopying shop comes out to meager 10 % of the entire book/
material. The fact that it is well within the ‘global standard’ of 10% cements
up the DU stand.
It is now apt to say that the court
ought to declare that extracts copied from copyrighted books/materials
constitute as non-infringing given that S.52(1)(h)(i) of the Indian Copyright
Act does not lay down any quantitative limit on permissible reproduction. In my
opinion, the court should allow for the permissible copying of the copyrighted
material up to 20% keeping in mind the socio-economic conditions of India.
LESSONS
FROM CANADIAN COPYRIGHT CASE
At this point, it is very imperative to
analysis the recent Canadian Supreme Court decision on the issue of ‘fair
dealing’ and ‘permissible purpose’ pertaining to copying extracts from the
copyrighted books and materials.
Analysis of Alberta (Education) v.
Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37] Case-
In this particular, the Canadian Supreme
Court has ruled that copying extracts from the copyrighted books/materials do
not constitute infringement as it is protected under the aegis of ‘fair
dealing’ and ‘permissible purpose’ if the extracts from a part of teaching
materials. Now, the relevance of this case in Indian context is discussed.
The Indian Copyright Act provides as
follows:
(1)
The following acts shall not constitute an infringement of copyright,
namely:
(a) A fair dealing with any work, not
being a computer programme, for the purposes of-
(i) Private and personal use, including
research;
(ii) Criticism or review, whether of that work
or of any other work;
Similar exceptions are also found in the
section 29 of the Canadian Copyright statute. Thus, in this particular Canadian
case, the Supreme Court of Canada ruled that copying extracts for teaching
purposes does not constitute infringement.
Now, we may refer to Sec. 52 (1) (a) of
the Indian Copyright Act which provides for ‘fair
dealing’ together with the recent Canadian decision to aptly examine the
scope in the Indian copyright act.
Sec. 52(1) (a) (i) particularly refers
to ‘private use’ whereas the Canadian
statute uses the term ‘private study’. The
Canadian decision held that the interpretation of the word ‘private study’
should not mean that users should view the copyrighted works in utmost
isolation. Thus the Canadian case basically says that whether the study is done
alone or in group, copying extracts for teaching purposes would clearly fall
within the ‘permissible limits’ and
hence non-infringing per se. Therefore, similar line of argument could also be
taken by the DU/photocopying shop to defend their stance.
Unfortunately, in the backdrop of the
pertinent arguments advanced, the Delhi High Court has granted an interlocutory
order restraining the photocopying shop and the university from further copying
and circulating the course packages or the extracts compiled from the books.
Thus, it is highly desirable upon the Hon’ble Court that it should allow the
photocopying of extracts from the books/materials and vividly lay down a sound
foundation for a ‘fair dealing’ and ‘permissible purpose’ in copyrighted
books/materials.
