The DU Photocopying Case: Opening the Floodgates of Open Access in Indian Education

By Somya Pahi Jena, NALSAR, Hyderabad

Within the premises of the Delhi School of Economics, is situated Rameshwari Photocopy Services, owned by Dharam Pal Singh. To the unassuming eye, it is an ordinary photocopy shop but over the past few months, it found itself at the centre of a watershed legal tussle involving Indian copyright jurisprudence. Today the judgment stands as a landmark for the open access movement in Indian pedagogy and the photocopy shop stands as a reminder of the same.  

Initiation of the lawsuit

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In 2012, a lawsuit was filed against the Rameshwari Photocopy Service and Delhi University for infringement of copyright laws by three major publishing giants, which included the Cambridge University Press, Oxford University Press and the Taylor & Francis Group. The plaintiffs alleged that the creation, compilation and distribution of coursepacks, comprising excerpts from copyrighted books, by Rameshwari under license by the University of Delhi was large scale copyright violation. The lawsuit came as an unexpected move since the University of Delhi had authorised the widescale use of photocopies of academic resources as a matter of convenience and ease of access by students to material which was otherwise exorbitantly priced.

Following the initiation of the case of Chancellor, Masters and Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services and Anr in the Delhi High Court, a commission appointed by the High Court raided the photocopy shop in August, 2012 and subsequently a restraining order was passed in October 2012 preventing Dharam Pal Singh from making or distributing the abovementioned coursepacks till the disposal of the matter. Justice Rajiv Sahai Endlaw as the single Judge hearing the matter, disposed off the case in favour of the defendants protecting their right to photocopy the copyrighted material in the judgment dated 16th September 2016. The publishing houses filed an appeal against Justice Endlaw’s decision on the 5th of October which was admitted by the court on the 6th of October the same year before a Division Bench. While Justice Endlaw deliberated over the case for over a period of three years, the appellate Division Bench disposed off the petition in a matter of two months on the 9th of December 2016.

Judgment

The 94 page judgment by Justice Yogesh Khanna and Justice Pradeep Nandrajog emerged as a victory for access to education in India. The court ruled in favour of the defendants stating that the preparation, compilation and distribution of course packs using excerpts from copyrighted books for the purpose of educational instruction fell within the exceptions provided in Section 52(1)(i) of the Indian Copyright Act of 1957. The decision took into account the students’ interests of an affordable education which would have otherwise been hampered due to the exorbitantly priced books. Thus, the decision came not only as a victory for Rameshwari Photocopy Services but a number of stakeholders which included academicians, teachers and students.

Analysis of the Judgment

The Court acknowledged the fact that a copyright is a statutory right as per the provisions of the Act and photocopying the original work was a right that the owner solely and exclusively possessed and that photocopying the copyrighted material would amount to a copyright infringement under Section 51 of the Indian Copyright Act, 1957 if the act of photocopying by Rameshwari Photocopy Services and the University of Delhi did not fall under any of the exceptions provided under Section 52 of the Act.

The Court held that the acts of the defendants fell within the meaning of Section 52(1)(i) of the Indian Copyright Act of 1957 that provides for educational exceptions which include reproduction of copyrighted material for academic purposes during the course of instruction by a teacher or a pupil. The Court rejected the arguments of the appellants who alleged that exception was limited only to the classroom and stated that the term ‘during the course of instruction’ was not simply limited to the classroom and applied beyond that, in doing so, the court placed reliance upon the common law judgment of Longman Group Ltd. v. Carrington Technical Institute Board of Governors by the High Court of New Zealand in 1991. In the case, the phrase ‘in the course of instruction’ was interpreted to include anything in the process of educational instruction which would begin earlier than the time of actual instruction for the teacher and end at a time later than the time of actual instruction for the student. Unlike earlier times, where the most basic forms of information dissemination took place in the classroom, in the modern world, the initial acquisition of knowledge by a student is based on the ‘readings’ done prior to attending the class. During the course of the judgment, Justice Nandrajog stated “So fundamental is education to a society – it warrants the promotion of equitable access to knowledge to all segments of the society, irrespective of their caste, creed and financial position.”

The Court also rejected the fair use principle while stating that the Indian Courts were only bound by the text in the law books and in taking a more liberal interpretation, specified, that one must be guided by the ‘purpose’ while deciding on copyright defences. The court further elucidated that the reason the exception for educational purposes was included by the lawmakers was to further the aims of educational instruction and refused to place a cap on the percentage of material copied as long as the material being copied was reasonably necessary to further the purpose of education.

During the course of the judgment, the Court also explained the nature of copyrights with respect to literary works and stated, “Copyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public.”

In addition, the Court remanded back the case to the Trial Court for a fact specific determination to determine whether each of the copyrighted excerpts reasonably fulfilled the purpose of educational instruction.

Analysis of the Judgment

The DU Photocopying Case (as it is proverbially known) is hailed as a defining moment in copyright jurisprudence as protecting the rights of the Indian educational society. However, some stakeholders have cried foul of the ultimate verdict of the Delhi High Court. Former NCERT Chairman, Krishna Kumar raised concerns that the photocopying culture, encouraged by this decision, would ultimately draw students away from reading full titles and restrict them only to excerpts from the narrow confines of the syllabi. Apart from this, the aggrieved publishers have cried foul of the practice eating away at their profits and argued that the lack of protection of private copyrights would deter new innovation.

While some of these counter arguments may have their merits, reversing the verdict of the High Court would not automatically draw students towards reading full texts as there are severe financial constraints in getting a hold of academic titles. Also, the argument of innovation being promoted by intellectual property rights has been glossed over and disproved in several studies as well as the Indian judiciary in the Novartis case.

Conclusion

In the Indian higher education environment, academic resources are prohibitively priced and oligopolistic tendencies of the publishing community disincentivise economical and easy access to these resources. In this backdrop, the decision is a huge sigh of relief for students, academics, lawyers and activists who rallied behind the cause of access to information that affects not only the University of Delhi, but the educational community across the country.

Thus, the judgment of the Delhi High Court has displayed a sense of responsiveness and boldness of the judiciary that has very seldom been seen before. Be it the lightning pace at which the case was dealt with, against the trend of atrocious judicial pendency rates or the bold judicial activism in asserting social goals over restrictive private rights – the decision has impacted Intellectual Property jurisprudence and questions of educational access not only in India, but globally.

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