The philosophical roots of copyright are grounded in striking a balance between an exclusive right granted to the owner of copyright along with the interest of the public in ensuring that works are available in the public domain. The division bench (Justices Pradeep Nandrajog and Yogesh Khanna) of the Delhi High Court in their judgment (arising out of the appeal against Justice Justice Rajiv Sahay Endlaw’s decision in the Delhi University photocopy case) have arrived at a harmonious reading of copyright doctrine which will further the cause of education and equitable access.
The jurisprudential backbone
Being cognisant of the fact that this case is keenly followed by many non-lawyers who may get lost within the thicket of technical legal arguments, the court towards the end of the judgment provides a helpful musical analogy which succinctly summarises the jurisprudential backbone of the judgment. Comparing a statute to a musical melody with different notes, the judge observes that just as a harmonious melody would require that for all notes to be heard, sometimes the more dominant ones (such as a loud drum) sometimes needs to be muted in order for other notes to be heard. Translated into the Copyright Act it is clear that if the predominant purpose of the law is to provide exclusive rights to owners of copyright, this right sometimes has to be muted to serve other equally important purposes such as education.
Rejecting the contention of the publishers and the IRRO (Indian Reprographic Rights Organisation) demanding a narrow reading of the word instruction the judges referred to the parliamentary debate which led to the enactment of Act No.27 of 2012 where the Minister piloting the Bill clearly told the House, “Of course, non-profit libraries should not be charged. Many of these copyrighted materials can be used, should be used and must be used in non-profit libraries.” Echoing the policy intentions of the legislature, the judges chose to ignore the technical distinctions sought to be made between education and instruction, and between textbooks and course packs and held that: “The importance of education lies in the fact that education alone is the foundation on which a progressive and prosperous society can be built. Teaching is an essential part of education, at least in the formative years, and perhaps till post-graduate level. It would be difficult for a human to educate herself without somebody: a teacher, helping. It is thus necessary, by whatever nomenclature we may call them, that development of knowledge modules, having the right content, to take care of the needs of the learner is encouraged. We may loosely call them textbooks. We may loosely call them guide books. We may loosely call them reference books. We may loosely call them course packs. 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. Of course, the more indigent the learner, the greater the responsibility to ensure equitable access” (Paragraph 30).
Principle of fairness
They clarify that fairness is an essential aspect of the statute especially when there is an exception being carved out of a person’s legal rights. But what is a principle of fairness? In a crucial paragraph the judges clearly state: “In the context of teaching and use of copyrighted material, the fairness in the use can be determined on the touchstone of ‘extent justified by the purpose’. In other words, the utilization of the copyrighted work would be a fair use to the extent justified for purpose of education. It would have no concern with the extent of the material used, both qualitative or quantitative. The reason being, ‘to utilize’ means to make or render useful. To put it differently, so much of the copyrighted work can be fairly used which is necessary to effectuate the purpose of the use i.e. make the learner understand what is intended to be understood.”
The significance of this interpretation is that it explicitly rejects the adoption of American standards (the four factor test) into Indian copyright law and grounds the principle of fairness within a philosophy of education, rejecting any claim that there should be either a quantitative or a qualitative restriction imposed. The significance of not laying down any restriction will be best appreciated by anyone who has encountered higher education in any Western university where teachers and students face severe constraints because of quantitative restrictions which can have debilitating effects. Consider, for instance, a rule which says that not more than 10 per cent of a work can be reproduced for education. While the publishers have primarily advanced a single example in the entire case (namely the reproduction of chapters or books in course packs), if such a quantitative restriction were applied in the case of a poem, or a photograph it would have ridiculous consequences.
‘A publication’ contention
The court also rejected the contention of the publishers that Sec. 52 allows for reproduction of a work, but by making it available through photocopies it is no longer a reproduction but a publication. The court holds that publication has an element of profit (for instance, in mass publication), and neither does the use of a photocopy machine nor the use of an intermediary (a photocopier) qualify automatically as publication, and the only relevant test is whether copying is “in the course of instruction”. And the test to see whether copying is “in the course of instruction” involves “considering whether the inclusion of the copyrighted work in the course pack was justified by the purpose of the course pack i.e. for instructional use by the teacher to the class”, and hence it would be inaccurate to claim that the word reproduction is limited to a single copy.
One crucial difference between Justice Endlaw’s judgment and the present one is that while the former found absolutely no fact that was worthy of being tried since there was no prima facie infringement, in the present judgment the court has held that the specific question of whether the reproduction of full works are in the course of instruction is a matter that can be determined in a trial and has consequently remanded that issue back to a trial judge.
The judgment rightfully rejects the rather scandalous attempt by the publishers to lock education within a straitjacket of property, and it is befitting that the appellants who are the university presses of two of the oldest and most prestigious universities should be provided a reminder of what the scope of education is. The significance of this judgment is that while it arose out of a seemingly narrow question of whether the photocopying of course packs was allowed in the copyright law, this question could only be answered by returning copyright back to its normative foundations in education. It is important to remember that the very first copyright statute dating back to 1710, the Statute of Anne was called “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies”.
This is a very welcome judgment which has immense significance beyond India and could serve as a model for the interpretation of copyright statues in other countries which also face the challenge of sharp inequalities and high cost of learning materials.